In Re: Ex Parte Application Pursuant to Section 204 of the Federal Arbitration Act and A.R.S. 12-1507 for an Order to Provide Documents and/or Appear Remotely and Testify in a Foreign Arbitration Hearing

Filing 9

ORDER that ICBC's motion for expedited consideration #6 is GRANTED. FURTHER ORDERED that ICBC's Ex Parte Application Pursuant To Section 204 Of The Federal Arbitration Act and A.R.S. 12-1507 For An Order To Provide Documents And/Or Appear Remotely And Testify In A Foreign Arbitration Hearing (Docs. #1 and #2 ) is GRANTED. See document for further details. Signed by Judge Douglas L Rayes on 5/09/2024. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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In Re: Ex Parte Application Pursuant To
Section 204 Of The Federal Arbitration Act
and A.R.S. § 12-1507 For An Order To
Provide Documents And/Or Appear
Remotely And Testify In A Foreign
Arbitration Hearing
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No. MC-24-00015-PHX-DLR
ORDER

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At issue is Petitioner Insurance Company of British Columbia’s (“ICBC”) Ex Parte

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Application Pursuant To Section 204 Of The Federal Arbitration Act and A.R.S. § 12-1507

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For An Order To Provide Documents And/Or Appear Remotely And Testify In A Foreign

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Arbitration Hearing (Docs. 1 and 2), ex parte motion for expedited consideration (Doc. 6),

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and supplemental memorandum (Doc. 8). ICBC seeks leave to issue subpoenas to Quick

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Silver Transportation, LLC (“Quick Silver”), and the Arizona Department of

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Transportation (“ADOT”), both of whom reside or are located within this District, to

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produce certain insurance policy coverage documents and/or appear remotely and testify

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via videoconference at an upcoming arbitration scheduled to take place in British

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Columbia, Canada, on May 22, 2024. ICBC attached copies of draft subpoenas as Exhibits

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A and Exhibits B to its application.

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ICBC seeks leave principally under 28 U.S.C. § 1782, which provides that upon

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application by any interested person, the Court may order a person residing within its

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District to produce documents or give testimony for use in a foreign proceeding. “There

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are thus three threshold requirements for compelling discovery under § 1782: (1) the person

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from whom discovery is sought must ‘reside’ or be ‘found’ in the district; (2) the discovery

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must be for use in a proceeding in a foreign tribunal; and (3) the applicant must be an

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‘interested person.’” In re Godfrey, 526 F. Supp. 2d 417, 418 (S.D.N.Y. 2007). If these

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requirements are met, “[t]he statute authorizes, but does not require,” the district court to

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compel the requested discovery. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.

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241, 255 (2004). In exercising its discretion to grant or deny a request under § 1782, the

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court considers several factors, including: (1) whether the “person from whom discovery

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is sought is a participant in the foreign proceeding;” (2) the nature and character of the

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foreign proceeding, and whether the foreign court is receptive to judicial assistance from

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the United States; (3) whether the request is an attempt to circumvent foreign proof-

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gathering restrictions; and (4) whether the discovery request is “unduly intrusive or

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burdensome.” Id. at 264-66. In weighing these factors, the Court must be mindful of “the

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twin aims of the statute: providing efficient means of assistance to participants in

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international litigation in our federal courts and encouraging foreign countries by example

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to provide similar means of assistant to our courts.” In re Metallgesellschaft AG, 121 F.3d

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77, 79 (2d Cir. 1997) (internal quotations and citation omitted).

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ICBC’s application satisfies the three threshold requirements for relief under §

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1782. Quick Silver and ADOT both reside in this District, and ICBC is an interested person

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because it is a party to the arbitration proceeding. ICBC seeks discovery for use in an

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arbitration proceeding in British Columbia, Canada. The Supreme Court recently held that

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“only a governmental or intergovernmental adjudicative body constitutes a ‘foreign or

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international tribunal’ under § 1782. Such bodies are those that exercise governmental

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authority conferred by one nation or multiple nations.” ZF Automotive US, Inc. v. Luxshare,

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Ltd., 596 U.S. 619, 638 (2022). Although purely private commercial arbitration panels do

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not fall within this definition, the Supreme Court left open the possibility that other types

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of arbitration panels could be covered by the statute if they sufficiently exercise

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governmental authority. Id. at 633. The Court finds such to be the case here.

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The claimant in the arbitration proceeding is a Canadian citizen who was injured

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after being struck by a motor vehicle in Scottsdale, Arizona. British Columbia

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Underinsured Motorist Protection (“UMP”) coverage helps cover an injured Canadian

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citizen’s damages when an at-fault driver does not have enough insurance coverage, but

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the amount of recovery must be offset against any other insurance that would have been

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available to the injured claimant. All drivers in British Columbia must purchase minimum

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coverage, including UMP, from ICBC. And Canadian provincial law Regulation s.148.2(1)

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requires coverage disputes to be resolved either by private arbitration by consent or, in the

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absence of consent, by arbitration under the Arbitration Act of British Columbia through

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B.C. International Commercial Arbitration Centre (“BCICAC”), a non-profit entity. The

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arbitration at issue here is not a private arbitration by consent; it is an arbitration under the

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Arbitration Act through BCICAC. Under these circumstances, the Court finds that

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arbitration under the Arbitration Act through BCICAC is more akin to a governmental

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authority than a purely private, commercial body.

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As for the discretionary factors, Quick Silver and ADOT are not parties to the

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foreign proceeding; there is no reason to believe the BCICAC arbitration panel would be

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unreceptive to judicial assistance from the United States (to the contrary, ICBC

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successfully obtained similar assistance from this Court during an earlier phase of this

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arbitration, see Doc. 6 in Case No. 2:23-mc-00018-PHX-SMB); there is no evidence that

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ICBC is attempting to circumvent foreign proof-gathering restrictions; and on their face,

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the proposed subpoenas do not appear unduly intrusive or burdensome. To the extent Quick

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Silver or ADOT feel otherwise, they may raise their objections after being served with the

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subpoenas.

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Accordingly,

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IT IS ORDERED that ICBC’s motion for expedited consideration (Doc. 6) is

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GRANTED.

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IT IS FURTHER ORDERED that ICBC’s Ex Parte Application Pursuant To

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Section 204 Of The Federal Arbitration Act and A.R.S. § 12-1507 For An Order To Provide

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Documents And/Or Appear Remotely And Testify In A Foreign Arbitration Hearing

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(Docs. 1 and 2) is GRANTED as follows:

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1. ICBC may issue the subpoenas attached to the application as Exhibit A (the

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“Subpoena To Produce Documents, Information, Or Objects Or To Permit

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Inspection Of Premises In A Civil Action”), pursuant to the Federal Rules of

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Civil Procedure, and pursuant thereto require Quick Silver and ADOT to

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produce the requested insurance policy coverage documents on or before May

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15, 2024, and that the place for production shall be at: (i) The Law offices of

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Evans, Dove, Nelson, Fish & Grier PLC, 2650 E. Southern Ave, Mesa, AZ

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85204; or (ii) At any other location mutually agreeable to the Applicant and the

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subpoenaed parties.

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2. ICBC is granted leave to issue the subpoenas attached to the application as

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Exhibit B (the “Subpoena to Appear and Testify At A Hearing Or Trial In A

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Civil Action”), pursuant to the Federal Rules of Civil Procedure, and pursuant

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thereto require Quick Silver and ADOT to appear and testify remotely as

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witnesses at the foreign Arbitration Hearing scheduled to take place in British

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Columbia, Canada, on May 22, 2024 at 10:00 a.m., and that the appearance be

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via videoconference from: (i) The Law offices of Evans, Dove, Nelson, Fish &

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Grier PLC, 2650 E. Southern Ave, Mesa, AZ 85204; or (ii) At any other location

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mutually agreeable to the Applicant and the subpoenaed parties.

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Dated this 9th day of May, 2024.

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Douglas L. Rayes
United States District Judge

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