NML Capital, Ltd. v. The Republic of Argentina

Filing 24

ORDER DENYING OBJECTION TO DISCOVERY ORDER. Signed by Judge Jeffrey S. White on 11/13/12. (jjoS, COURT STAFF) (Filed on 11/13/2012)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 NML CAPITAL, LTD., 10 Plaintiff, 11 For the Northern District of California United States District Court No. CV 12-80185-MISC JSW 12 ORDER DENYING OBJECTION TO DISCOVERY ORDER v. THE REPUBLIC OF ARGENTINA, 13 Defendant. / 14 15 Now before the Court are the objections filed Defendant the Republic of Argentina (the 16 “Republic”) to Magistrate Judge James’ Order regarding their motion to quash (the “Order”). 17 Having carefully reviewed the objections, and considered the Republic’s arguments and the 18 relevant legal authority, the Court hereby DENIES the Republic’s objections and AFFIRMS the 19 Order. 20 The District Court may modify or set aside any portion of a magistrate’s ruling on non- 21 dispositive pre-trial motions found to be “clearly erroneous or contrary to law.” Fed. R. Civ. P. 22 72(a); see also, e.g., Grimes v. City and County of San Francisco, 951 F.2d 236, 241 (9th Cir. 23 1991). A ruling is clearly erroneous if the reviewing court, after considering the evidence, is 24 left with the “definite and firm conviction that a mistake has been committed.” United States v. 25 U.S. Gypsum Co., 333 U.S. 364, 395 (1948). 26 After a careful review of the Order, this Court finds that Judge James’ ruling was not 27 clearly erroneous or contrary to law. The Republic argues that the subpoena issued to non-party 28 Chevron Corporation (“Chevron”) is impermissible under the Foreign Sovereign Immunities 1 Act, 28 U.S.C. §§ 1330, et seq. (“FSIA”). In rejecting the Republic’s argument Judge James 2 relied on a recent order by the Second Circuit, EM LTD. v. Republic of Argentia, 695 F.3d 201 3 (2nd Cir. 2012). 4 In EM, the Second Circuit similarly upheld a subpoena issued to a non-party, non- held that “because the district court ordered only discovery, not the attachment of sovereign 7 property, and because that discovery is directed at third-party banks, Argentina’s sovereign 8 immunity is not affected.” Id. at 203. The court reasoned that the discovery order did not 9 implicate the Republic’s immunity from attachment: “It does not allow [the plaintiff] to attach 10 Argentina’s property, or indeed have any legal effect on Argentina’s property at all; it simply 11 For the Northern District of California sovereign entity, despite objections by the Republic pursuant to the FSIA. The Second Circuit 6 United States District Court 5 mandantes [the non-party bank]’s compliance with subpoenas duces tecum.” Id. at 208. 12 Additionally, the court reasoned that the subpoenas “were directed ... at commercial banks that 13 have no claim to sovereign immunity... . Thus, the banks’ compliance with subpoenas will 14 cause Argentina no burden and no expense.” Id. at 210. The Court finds the reasoning in EM 15 persuasive. 16 The Republic argues that the Second Circuit was mistaken and relies heavily on the 17 Seventh Circuit’s opinion in Rubin v. The Islamic Republic of Iran, 637 F.3d 783 (7th Cir. 18 2011). The court in Rubin does address the impact of FSIA on discovery requests. However, 19 significantly, the requests at issue in Rubin were propounded directly on Iran at the Islamic 20 Republic of Iran, and not a third party non-sovereign entity. Therefore, responding to the 21 discovery requests would have burdened and required the Islamic Republic of Iran to incur 22 expenses, a burden from which FSIA protects foreign sovereigns. Id. at 795 (noting that “it is 23 widely recognized that the FSIA’s immunity provisions aim to protect foreign sovereigns from 24 the burdens of litigation, including the costs and aggravations of discovery”). Here, the 25 Republic does not explain how it, as opposed to Chevron, would be burdened by responding to 26 /// 27 /// 28 /// 2 1 the subpoenas. Accordingly, the Court DENIES the Republic’s objections and AFFIRMS the 2 Order regarding the Republic’s motion to quash. 3 IT IS SO ORDERED. 4 5 Dated: November 13, 2012 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?