In re Grupo Unidos Por El Canal
| Decision Date | 17 April 2015 |
| Docket Number | Civil Action No. 14-mc-00226-MSK-KMT |
| Parties | In Re Application of GRUPO UNIDOS POR EL CANAL, S.A., To Obtain Discovery for Use in an International Proceeding. |
| Court | U.S. District Court — District of Colorado |
ORDER
The controversy underlying this request for discovery in aide of foreign litigation involves the expansion of the Panama Canal. Autoridad del Canal de Panama, also known as the Panama Canal Authority ("ACP") is responsible for the operation and management of the Panama Canal. In August 2009, ACP entered into several contracts for the completion of the Panama Canal expansion, referred to here as the Canal Project, which anticipated the construction of a third set of locks for the canal.
Before the court is Grupo Unidos por el Canal, S.A.'s, ("GUPC") "Ex Parte Application for an Order Under 28 U.S.C. § 1782 to Obtain Discovery from Ch2M Hill1 for Use in an International Proceeding" [Doc. No. 1] ("§ 1782 App.") filed October 1, 2014. GUPC is a Panama-based company and is the contractor for the Canal Project pursuant to a contract with ACP. ACP's "Notice of Opposition to GUPC's Ex Parte Application for an Order Under 28 U.S.C. § 1782 and Notice of Intent to Move to Intervene" [Doc. No. 4] was filed on October 10, 2014 and it's "Motion for Leave to Intervene in the 28 U.S.C. § 1782 Action Initiated by GrupoUnidos Por El Canal, S.A." [Doc. No. 8] ("Intervention Mot.") was filed on October 30, 2014. ACP's Complaint in Intervention [Doc. No. 8-1] was allowed on January 13, 2015. (Hearing Minutes, [Doc. No. 22].) Along the way, CH2M Hill Companies, Ltd. ("CH2M Hill-US") also filed its own opposition to the discovery requested by GUPC. [Doc. No. 10]. A hearing addressing all matters was conducted on January 13, 2015.
Applicant GUPC alleges that it began work on the Canal Project in 2009 and "[f]rom the outset, . . . , ACP substantially failed to perform its obligations in numerous respects, including, inter alia, by concealing and withholding critical information regarding the true nature of the existing conditions at the Project and the status of other aspects of the Panama Canal expansion." (§ 1782 App. ¶ 4.) GUPC alleges that "ACP's material misrepresentations and other breaches have resulted in delays, cost overruns, and other problems relating to the Project." (Id.)
The Canal Project contract between ACP and GUPC contains an arbitration clause which provides, in relevant part, that any dispute arising from the Canal Project shall be arbitrated in Miami, Florida, USA, under the Rules of Arbitration of the International Chamber of Commerce ("ICC"). (Intervention Mot. at 2.) ACP and GUPC agree that the arbitration clause in the ACP/GUPC contract is governed by the U.S. Federal Arbitration Act ("FAA"). (Intervention Mot. at 3.) Further, the parties agree that discovery shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (the "IBA Rules"), although the parties disagree over whether the IBA Rules are mandatory or permissive.
On December 28, 2013, GUPC, along with several co-claimants, filed a request for arbitration, which through the ICC commenced the now-pending arbitration proceeding. (§ 1782 App. ¶ 5.) It is this Miami-based arbitration proceeding that is alleged to be the "international proceeding" supporting GUPC's Section 1782 request.
GUPC seeks discovery from CH2M Hill-US in the United States to support its allegations against ACP in the arbitration proceedings. CH2M HILL-US asserts that it is not the Project Manager for the Panama Canal expansion project and therefore does not possess the requested documents. Neither CH2M HILL-Panama nor CH2M HILL-US are parties to the arbitration proceedings. (CH2M Hill Opp. at 2-3.) It does not appear disputed, at least for purposes of this § 1782 Action, that as part of the relationship between ACP and CH2M Hill-Panama, ACP has a contractual right to certain confidential documents related to the Canal Project that are within CH2M Hill-Panama's possession. Id.
After the arbitration proceeding was commenced, the parties agreed on Terms of Reference - an agreement entered into between the parties to the arbitration that governs the arbitration procedure. (Intervention Mot., Ex. G.) That document reaffirmed that the arbitration will be governed by the FAA and the IBA Rules. (Id.) The parties also granted the self-selected panel of arbitrators the power to issue procedural orders and to set a procedural timetable. (Id. § 10, ¶ 67; § 13, ¶ 74.) Such a timetable was issued by the arbitration panel. (Id., Ex. H, Procedural Order No. 1.)
Pursuant to 28 U.S.C. § 1782, GUPC now seeks documents from CH2M Hill-US for use in the arbitration proceedings. Both CH2M Hill-US and ACP object to the Application onvarious grounds, including: "(1) the Miami Arbitration is a private commercial arbitration and not a 'tribunal' within the ambit of Section 1782; (2) the Miami Arbitration is not a 'foreign or international tribunal' within the meaning of Section 1782 since the seat of the arbitration is in the United States; (3) the Proposed Subpoena improperly attempts to obtain documents located abroad including from a foreign corporate entity (CH2M HILL-Panama) that is separate from CH2M HILL-US; (4) the Proposed Subpoena is unduly burdensome and intrusive; and (5) the Proposed Subpoena appears to be an attempt to circumvent contractual procedural and discovery limitations in the Miami Arbitration." (CH2M Hill Opp. at 3-4.)
Title 28 U.S.C. § 1782 provides, in relevant part, that "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, . . . ." 28 U.S.C. § 1782. The primary purpose of § 1782 is to provide judicial assistance through United States federal courts in gathering evidence for use in a proceeding in a foreign or international tribunal. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). A petitioner seeking discovery for proceedings in a foreign jurisdiction pursuant to § 1782, must meet the following four requirements:
(1) the request must be made "by a foreign or international tribunal," or by "any interested person"; (2) the request must seek evidence, whether it be the "testimony or statement" of a person or the production of "a document or other thing"; (3) the evidence must be "for use in a proceeding in a foreign or international tribunal"; and (4) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.
In re Application of Michael Wilson & Partners, Ltd., Case No. 06-cv-02575-MSK-PAC, 2007 WL 22221438, at *2 (D. Colo. July 27, 2007) (quoting In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir.2007)).
To the extent the Petitioner is able to meet the threshold considerations to obtain discovery pursuant to the statute, the court must further consider whether certain discretionary facts weigh in favor of granting the application and the requested discovery. These factors include: (1) whether the party from whom discovery is sought is a participant in the foreign proceeding, or already subject to the jurisdiction of the foreign tribunal; (2) the nature and character of the foreign proceedings; (3) the receptivity of the foreign tribunal to such judicial assistance; (4) whether the request is an attempt to circumvent foreign discovery restrictions; and (5) whether the requests are unduly intrusive or burdensome. See Intel, 542 U.S. at 264-265.
The parties do not dispute that Petitioner has satisfactorily met the first and second requirements to proceed under Section 1782. GUPC, the Petitioner, is a party to the Canal Project arbitration proceedings and therefore qualifies as an interested party. Further, GUPC seeks documentary evidence that it claims it will attempt to use in the arbitration proceedings. It is the third and fourth requirements that are at issue here.
ACP claims that the Canal Project arbitration is neither "international" nor is it a "tribunal" within the meaning of § 1782. CH2M HILL-US agrees, and also disputes that the party who has possession of the documents sought by GUPC, CH2M HILL-Panama, resides or can be found in the district of the district court ruling on the application for assistance.
Petitioner includes the Declaration of Anne Marie Whitesell, currently a Professor at Georgetown University Law Center and formerly Secretary General of the ICC, in support of its request for application of § 1782 to ICC proceedings generally. (Reply, Vasquez Declaration [Doc. No. 13-1], Ex. 1 [Doc. No. 13-2], Declaration of Anne Marie Whitesell) (hereinafter "Whitesell Decl."). ACP moves to strike the Whitesell Declaration "[b]ecause the Whitesell declaration is impermissibly offered for the sole purpose of providing legal conclusions."
Federal Rule of Evidence 702(a) does not permit an expert witness to opine on conclusions of law, such as statutory interpretation, which are the sole province of the Court. The Tenth Circuit has cautioned that "[i]n no instance can a witness be permitted to define the law of the case." Maxwell v. Kerr-McGee Chem. Worldwide, LLC, No. 04-cv-01224-PSF-CBS, 2006 WL 2053534, at *3 (D. Colo. July 21, 2006) () (citing Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988.) See also Peiker Acustic, Inc. v. Kennedy, No. 10-cv-02083-REB-MJW, 2012 WL 975883, at *2 (...
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