In re Republic of Turk.
| Decision Date | 18 May 2020 |
| Docket Number | Civil Action No. 2:19-CV-20107-ES-SCM |
| Parties | IN RE EX PARTE PETITION OF THE REPUBLIC OF TURKEY FOR AN ORDER DIRECTING DISCOVERY FROM HAMIT ÇIÇEK PURSUANT TO 28 U.S.C. § 1782 |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
OPINION & ORDER
The question for this Court is one of first impression- whether § 1782, which authorizes judicial assistance to obtain evidence for use in foreign proceedings, applies when a foreign government petitioner seeks discovery from a person it has charged in a separate foreign criminal investigation. Before this Court is Respondent Hamit Çiçek's ("Mr. Çiçek") motion to either vacate the Order granting judicial assistance to the Petitioner Republic of Turkey ("Republic"), or alternatively to quash the Republic's subpoenas served upon him.1 Mr. Çiçek also seeks discovery from the Republic and sanctions against their counsel. The Republic opposes and has informally moved to enforce the subpoenas.2 The Court heard oral argument on May 18, 2020. For the reasons set forth on the record and herein, Mr. Çiçek's motions to vacate, quash, compel discovery and for sanctions against the Republic's counsel are all DENIED. The Republic's motion to enforce is GRANTED.
I. BACKGROUND AND PROCEDURAL HISTORY3
The Republic of Turkey is the respondent in a proceeding ("International Arbitration") initiated by Cascade Investments NV ("Cascade") on February 19, 2018, before the International Center for Settlement of Investment Disputes ("Arbitral Tribunal").4 Cascade claims that the Republic unlawfully expropriated Cascade's investment in a Turkish news and media outlet known as Cihan Medya Dagitim A.S. ("CMD") as part of a "crackdown" on press freedom.5 The Republic argues that the Arbitral Tribunal lacks jurisdiction over the dispute, and Cascade acknowledges that it bears the burden of establishing such jurisdiction.6
The Republic explains that it began investigating CMD and other media outlets in 2014 for links to an alleged "terrorist organization:" Fetullahçı Terör Örgütü ("FETÖ").7 The Republic further contends that FETO and CMD are linked to Fetullah Gülen, a well-known Islamic cleric living in exile in the United States.8
At the time the Republic began its investigation in 2014, Mr. Hamit Çiçek, a Turkish national, owned 23.13% of CMD's shares. By May 2015 he had reportedly brought his shareholding in CMD to 99.8%, and on May 5, 2015 he sold 89.8% of his CMD shares to Cascade in a "quick sale."9 Cascade later purchased additional shares to bring its stake in CMD to 99.93%.
Meanwhile, Turkey's Istanbul Office of Chief Public Prosecutor brought a series of terrorism-related charges against Mr. Çiçek and, on July 26, 2016, an Istanbul judge issued a warrant for his apprehension.10 Mr. Çiçek fled to the United States and settled in New Jersey.
On November 8, 2019, the Republic petitioned this Court to allow service of a subpoena on Mr. Çiçek for discovery to be used in the International Arbitration.11 That petition made no mention of the criminal charges against Mr. Çiçek and was granted on December 10, 2019.12 When the Republic then issued and served two subpoenas, Mr. Çiçek moved to quash them and to vacate the Order granting the petition.13 The Republic has opposed and informally seeks an order enforcing Mr. Çiçek's compliance with the subpoenas. Mr. Çiçek opposed the informal motion to enforce at oral argument.
Magistrate judges are authorized to decide any non-dispositive motion designated by the Court.14 This District specifies that magistrate judges may determine all discovery motions.15 Decisions by magistrate judges must ordinarily be upheld unless "clearly erroneous or contrary to law,"16 but where the decision concerns a discovery dispute, the ruling "is entitled to great deference and is reversible only for abuse of discretion."17
III. LEGAL STANDARD
Mr. Cicek moved to vacate the Order granting judicial assistance as a final judgment. That Order was not, however, certified as a final judgment.18 The Court will therefore treat Mr. Cicek's motion as one for reconsideration.
A district court has the inherent authority to reconsider its own interlocutory orders.19 This District governs such motions by Local Rule.20 Motions for reconsideration require the moving party to set forth "concisely the matters or controlling decision which counsel believes the [Court]has overlooked."21 "A motion for reconsideration under Rule 7.1(i) is an extremely limited procedural vehicle, and requests pursuant to [the rule] are to be granted sparingly."22 Reconsideration "is not appropriate where the motion only raises a party's disagreement with the Court's initial decision."23
A party seeking reconsideration is directed to file a brief "setting forth concisely the matter or controlling decisions which the party believes the Judge . . . has overlooked."24 To prevail on a motion for reconsideration, the moving party must show at least one of the following grounds: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [made its initial decision]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice."25
District courts are authorized to assist litigants in obtaining discovery from residents of the United States.26 The Third Circuit has determined that a "prima facie showing mandated by the statute" requires only that the application be (1) by a foreign tribunal or an "interested person," (2)that the information sought be "for use in a proceeding in a foreign or international tribunal," and (3) that the petition seeks discovery from a person or entity that "resides or is found" in this district.27 With these requirements satisfied, a district court has discretion to allow the discovery.28
This discretion is broad.29 "[A] district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so."30 In its Intel decision, the Supreme Court identified four discretionary factors for district courts to consider: (1) whether "the person from whom discovery is sought is a participant in the foreign proceeding;" (2) "the nature of the foreign tribunal, the character of proceedings underway abroad, and the receptivity of the foreign government, court, or agency to federal-court judicial assistance;" (3) whether the § 1782 request attempts to "circumvent foreign proof gathering restrictions or other policies;" and (4) whether the discovery sought is "unduly intrusive or burdensome."31
IV. DISCUSSION AND ANALYSIS
This Court may reconsider its decision if Mr. Çiçek can show grounds for doing so.32 Here, Mr. Çiçek argues that reconsideration of the Court's order is appropriate because 1) the order was granted ex parte; 2) § 1782 authority does not apply to criminal proceedings post-accusation; 3)the Republic failed to disclose its criminal charges against him; and 4) granting assistance circumvents United States policy.
Mr. Çiçek argues that he was denied due process because the Republic's petition was granted on an ex parte application.33 But "[a]n ex parte application is an acceptable method for seeking discovery pursuant to Section 1782," in part because the person subpoenaed may exercise their due process rights with a motion to quash.34 Mr. Çiçek has done just that—his present motions are to reconsider the Court's order and to quash the Republic's subpoenas without being compelled to produce any discovery. The original ex parte application did not deny him due process.
Mr. Çiçek's main argument is that the Republic is barred from § 1782 discovery because of its pending criminal charges against him. He contends that because the statute specifically includes "criminal investigations conducted before formal accusation," it must exclude criminal proceedings after formal accusation. Although this glosses over the fact that the underlying proceeding in this matter is a civil arbitration initiated against the Republic, not a criminal proceeding initiated against Mr. Çiçek, the argument is also contradicted by the text of § 1782, its legislative history, and the case law surrounding it.
As ''in all statutory construction cases, we begin with the language of the statute."35 Section 1782(a) provides, in relevant part:
(a) The district court of the district in which a person resides ... 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, including criminal investigations conducted before formal accusation. The order may be made ... upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.36
The plain language of the statute clearly applies to the Arbitral Tribunal because that body is "a foreign or international tribunal" operating pursuant to an international convention.37
Section 1782's history supports the same conclusion. In 1964, Congress made several changes to the law's scope. These modifications included replacing the words "in any judicial proceeding pending in any court in a foreign country" with the phrase "in a proceeding in a foreign or international tribunal," and expanding the statute's reach beyond conventional courts to include "administrative and quasi-judicial proceedings."38 Congress also amended the law to apply to "any interested person."39 Thus, the 1964 version of §...
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