2d Cir.: Production Cannot be Compelled Under 28 U.S.C. §1782 for Private International Arbitrations

Today, the Second Circuit issued a decision, In Re: Application and Petition of Hanwei Guo for an Order to take Discovery for Use in a Foreign Proceeding Pursuant to 28 U.S.C. 1782, No. 19-781 (2d Cir. July 8, 2020) affirming a district court's denial of a petition under 28 U.S.C. § 1782 for an order compelling the production of documents for a private international commercial arbitration. The arbitrator in this case was the China International Economic and Trade Arbitration Commission (CIETAC). 28 U.S.C. § 1782(a) allows federal courts to compel the production of materials “for use in a proceeding in a foreign or international tribunal”.

The Court noted that the legislative history of the statute indicates the phrase 'foreign or international tribunal' should not apply to private arbitration. The relevant House and Senate reports do not make any reference to alternative dispute resolution. The opinion notes that while the Fifth Circuit has issued a ruling also finding that § 1782 should not apply to private arbitrations, the Sixth Circuit has found that it does, and the Fourth Circuit has ruled that it should apply to private arbitrations in the United Kingdom because such arbitrations are authorized by the government pursuant to a statute. The Court found that the ruling of the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) which found that Directorate General-Competition of the Commission of the European Communities (a public entity) was a tribunal under § 1782 to the extent it acted as a first instance decision maker, did not address the issue of whether a private arbitration tribunal should be covered by § 1782.

In determining whether or not a CIETAC arbitration is a private international commercial arbitration, the Court considered multiple factors to evaluate if it functions as such an entity. CIETAC operates independently of the Chinese government. The arbitrators do not have to be affiliated with the Chinese government and there is only a limited basis on which government authorities can interfere with arbitrations beyond the enforcement of awards. CIETAC only receives jurisdiction over a dispute from the parties. Consequently, Judge Debra Ann Livingston's opinion concluded that CIETAC matters should be considered private arbitrations that are not covered by § 1782.

Some States Qualify Duty of Technology Competency

The ABA's Model Rule 1.1 imposes on a duty of technology competency on attorneys, and has been adopted in most states. Comment 8 to the rule states that, "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject." See the Litigation Support Tip of the Night for May 9, 2016.

Some states which have adopted these rules have qualified the language in Comment 8 requiring knowledge of legal technology.

The Supreme Court of the State of New Hampshire states in its court rules with respect to Comment 8 that:

"This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using."

Supreme Court of New Hampshire Order, dated Nov. 10, 2015 at p. 51, available at: https://www.courts.state.nh.us/supreme/orders/11-10-15-Order.pdf

So, a lawyer is bound to both have knowledge of the electronic discovery methods he or she uses, or those used by attorneys practicing in the same field.

In New York, Comment 8 to Rule 1.1 states that:

"To maintain the requisite knowledge and skill, a lawyer should (i) keep abreast of changes in substantive and procedural law relevant to the lawyer’s practice, (ii) keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information, and (iii) engage in continuing study and education and comply with all applicable continuing legal education requirements under 22 N.Y.C.R.R.Part 1500."

New York Rules of Professional Conduct, Effective April 1, 2009, As amended through June 1, 2018, at p. 13, available at: https://nysba.org/NYSBA/Practice%20Resources/Professional%20Standards%20for%20Attorneys/Professional%20Standards%20for%20Attorneys/Rules%20of%20Professional%20Conduct%20as%20amended%20060118.pdf

There is a special emphasis placed on keeping client data secure.

D.D.C.: Notice to Court of E-Discovery Search Problems Excuses 8 Day Delay in ESI Request Response

Earlier this month, Magistrate Judge Deborah A. Robinson issued a decision, Ronaldson v. Nat'l Ass'n of Home Builders, No. 19-01034, 2020 U.S. Dist. LEXIS 107436 (D.D.C. June 3, 2020), granting in part and denying in part, the Plaintiff's motion to compel. Ronaldson contested the Defendant's objections to its discovery requests. The Defendant produced unindexed pages of emails, which Ronaldson said prevented it from determining if their request had been responded to.

The Court found that while the Defendant's responses to Ronaldson's discovery requests were 8 days late, the delay was excusable in part because the Court was notified about problems with an e-discovery search. Judge Robinson held that while it was a close question, the Defendant did not waive its right to object.

Nearly all of the Defendant's objections contended that the discovery requests were overboard; not reasonably calculated to lead to the discovery of admissible evidence; and exceeding the scope of permissible discovery in the litigation. Ronaldson argued that this made the objections merely 'boilerplate', but Judge Robinson found that the objections made specific arguments about the relevance of requested evidence. Judge Robinson did however find that objections made on the basis of proportionality were waived because of a failure to submit evidence supporting the burden for this kind of objection.

The Court ordered the Defendant to supplement its email production in order to comply with the requirement of Fed. R. Civ. P. 34(b) that they be in the form in which they were originally maintained and label them pursuant to each category in the request. Fed. R. Civ. P. 34(b)(2)(E)(i), and Fed. R. Civ. P. 34(b)(2)(E)(ii) which specify these two requirements should be read to be supplementary and not as alternatives. "Defendant also represented that it had modified the emails to provide Bates numbering. Thus, Defendant's production of the emails did not 'replicate[] the manner in which they were originally kept' and Defendant was required to 'label them to correspond to the categories in the request[.]' Fed. R. Civ. P. 34(b)(2)(E)(i). Defendant shall supplement its electronic discovery responses to comply with this requirement." Ronaldson, 2020 U.S. Dist. LEXIS 107436, at *27.

Fed. R. Civ. P. 34 also requires that a party state the basis of the objection under which ESI or documents are withheld. Judge Robinson ordered that, "[d]efendant shall supplement its written and electronic discovery objections to include 'whether any responsive materials are being withheld on the basis of that objection.' Fed. R. Civ. P. 34(b)(2)(C)." Id. at *28.