“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.)

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