“Goose and gander” rule resolves international discovery dispute

In long-running litigation and arbitration about alleged environmental contamination in Ecuador, Chevron obtained discovery from U.S. courts several times under 28 U.S.C. § 1782 on the basis that a “foreign or international tribunal” was involved.  Republic of Ecuador v. Connor, No. 12-20122 (Feb. 13, 2013).  Chevron then successfully resisted a § 1782 application on the ground that the arbitration was not an “international tribunal.”   The Fifth Circuit applied judicial estoppel and reversed, asking: “Why shouldn’t sauce for Chevron’s goose be sauce for the Ecuador gander as well?  The Court dismissed a jurisdictional issue by characterizing § 1782 as a grant of administrative authority.  It then rejected Chevron’s arguments that judicial estoppel could not apply to legal issues and that reliance by earlier courts on Chevron’s position had not been shown.  The opinion reminds that: “Because judicial estoppel is an equitable doctrine, courts may apply it flexibly to achieve substantial justice.”  (quoting Reed v. City of Arlington, 650 F.3d 571 (5th Cir. 2011) (en banc), and citing New Hampshire v. Maine, 532 U.S. 752 (2001)).  (The “goose-and-gander” saying traces to an early collection of English proverbs.)

No interlocutory appeal of discovery order

The appellant in All Plaintiffs v. Transocean Offshore (the MDL relating to Deepwater Horizon) challenged an order requiring him to submit to a psychiatric exam and supply medical records as part of the procedure.  No. 12-30237 (Jan. 3, 2013, unpublished).  Following Mohawk Industries v. Carpenter, 130 S. Ct. 599 (2009), the Fifth Circuit held that the collateral order doctrine did not allow appeal of this interlocutory discovery order.  Any erroneous effect on the merits of the case could be reviewed on appeal of final judgment, and even if that review was “imperfect[]” to remedy the intrusion on his privacy interest, the harm was not so great as to justify interlocutory review of the entire class of similar orders.  A concurrence noted that while mandamus review was theoretically possible, this party had not requested it as an alternative to direct appeal, and had not made a sufficiently specific showing of harm to obtain mandamus relief.

No port for $26 million arbitration award in shipping dispute

Denied enforcement of a $26 million arbitration award in China’s Fujian Province (that court finding the award invalid because an arbitrator was imprisoned during the proceedings), the plaintiff sought recognition in the Eastern District of Louisiana.  First Investment Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding,  No. 12-30377 (Dec. 21, 2012, revised Jan. 17, 2013). The Fifth Circuit affirmed dismissal for lack of personal jurisdiction with three holdings: (1) the recent case of Goodyear Dunlop Tires v. Brown, 131 S. Ct. 2846 (2011), removed doubt as to whether foreign corporations could invoke due process protection about jurisdiction; (2) the New York Convention did not abrogate those rights; and (3) no “alter ego” relationship among the relevant companies was shown that could give rise to jurisdiction.  In a companion case, the Court affirmed a ruling that denied jurisdictional discovery based on “sparse allegations” of alter ego.    Covington Marine v. Xiamen Shipbuilding, No. 12-30383 (Dec. 21, 2012); cf.Blake Box v. Dallas Mexican Consulate, No. 11-10126 (Aug. 21, 2012) (reversing jurisdictional discovery ruling).

Abuse of discretion to not allow response to motion to quash

Texas Keystone v. Prime Natural Resources began as an application for U.S. discovery in support of an English court case pursuant to 28 U.S.C. § 1782.  After review of that statute and its relationship with Fed. R. Civ. P. 26 once discovery is ordered, the Court found an abuse of discretion when the trial court granted the respondents’ Motion to Quash without a response from the party requesting discovery.  Id. at 10-13 (citing Sandsend Financial Consultants v. FLHBB, 878 F.2d 875 (5th Cir. 1989) and Wiwa v. Royal Dutch Petroleum, 392 F.2d 812 (5th Cir. 2004)).  The Court’s analysis of section 1782, intended to guide the district court on remand, also provides general background for future discovery requests in the Circuit under that statute.