Republic of Ecuador, The et al v. Bjorkman

Filing 37

ORDER denying 22 the Joint Motion for a Stay of this Court's August 9, 2011 Order filed by Respondent Bjorkman and Interested Party Chevron Corporation, by Magistrate Judge Michael E. Hegarty on 8/29/2011. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01470-WYD-MEH
THE REPUBLIC OF ECUADOR, and
DIEGO GARCIA CARRION, Dr., the Attorney General of the Republic of Ecuador,
Petitioners,
v.
BJORN BJORKMAN,
Respondent.
CHEVRON CORPORATION,
Interested Party.

ORDER ON MOTION TO STAY

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is a Joint Motion for a Stay of this Court’s August 9, 2011 Order filed by
Respondent Bjorkman and Interested Party Chevron Corporation [filed August 11, 2011; docket
#22]. The motion is referred to this Court for disposition. (Docket #23.) The matter is fully briefed
and the Court finds that oral argument would not materially assist in the adjudication of the motion.
For the following reasons, the Court DENIES the motion to stay.
I.

Background
On June 6, 2011, the Petitioner initiated this action by filing an Application for the Issuance

of a Subpoena Under 28 U.S.C. § 1782(A). Docket #1. The application was referred to this Court
for disposition and, after briefing, the Court issued an order granting the Application on August 9,
2011. Docket #20. Two days later, Respondent and Interested Party Chevron (“Movants”) filed the

present motion to stay enforcement of the order. Motion, docket #22. Movants argue that good
cause exists for a stay of enforcement because (1) the order creates a risk of conflict between the
Court’s discovery procedures and schedule and the Tribunal’s procedures and schedule; (2) Chevron
has proposed a stipulation that would establish an “orderly schedule for obtaining evidence in the
Treaty Arbitration”; and (3) the order may impinge on Chevron’s claims of privilege, work product
protection and protection of trial preparation materials. See Motion at 2-3. Movants ask that the
Court stay the enforcement of the order “until the Tribunal has set a schedule and procedure for
discovery in the Treaty Arbitration and the District Court has completed review pursuant to Fed. R.
Civ. P. 72.” Id. at 6.
Petitioner objects contending that Movants have failed to address and meet the four-part test
for stays of court orders set forth in Nken v. Holder, – U.S. –, 129 S. Ct. 1749 (2009): (1) the
likelihood of success on appeal; (2) the threat of irreparable harm absent a stay; (3) the absence of
harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. See
docket #28 at 7. Petitioner argues that this Court’s August 9, 2011 order is sound and will be upheld
on review, that Movants have failed to identify any irreparable harm if their motion is not granted,
and that Petitioner will be harmed by the delay of a stay. Id. at 8-11. Movants reply that they may
be harmed because execution of the August 9, 2011 order would preempt the Treaty Arbitration
Tribunal’s authority to regulate discovery, which would lead to inequitable and inconsistent
treatment in the Treaty Arbitration, and because the order might possibly require disclosure of
privileged and trial preparation materials. Docket #30 at 2-3. In addition, Movants assert that
Petitioner has characterized to the Tribunal the discovery sought in this action as “premature,” which
is inconsistent with its position in this case. Id.

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II.

Discussion
In this Court,
[t]he filing of an objection, pursuant to Fed. R. Civ. P. 72(a), to an order by a
magistrate judge concerning a discovery issue does not stay the discovery to which
the motion is directed. Any stay of the magistrate judge’s order must be sought and
obtained separately by motion filed initially with the magistrate judge, and if denied,
then with the assigned district court judge. The motion shall be supported by good
cause.

D.C. Colo. LCivR 30.2B. Petitioners contend that Movants are subject to the Nken four-part test
to justify their request for a stay, arguing that courts in this district have applied the test to determine
good cause under Local Rule 30.2B. See, e.g., Zander v. Craig Hosp., No. 09-cv-02121-REB-BNB,
2010 WL 1571213, at *1 (D. Colo. Apr. 20, 2010) (citing a four-part test substantially the same as
that cited in Nken without actually citing to Nken). Movants counter that courts in this district have
used different standards for determining good cause in this instance. Movants are correct; for
example, in Silverstein v. Federal Bureau of Prisons, No. 07-cv-02471-PAB-KMT, 2009 WL
5217977, at *1 (D. Colo. Dec. 29, 2009), the court analyzed the following factors set forth in String
Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955 at *2 (D.
Colo. Mar. 30, 2006) to determine good cause under Local Rule 30.2B: (1) plaintiff's interests in
proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2)
the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties
to the civil litigation; and (5) the public interest.
Under either scenario, however, the Court finds that Movants have failed to demonstrate
good cause to justify their request for stay of execution of the August 9, 2011 order.
First, setting aside the question whether discovery in the Treaty Arbitration would conflict
with discovery allowed in this action, it is undisputed that the Treaty Arbitration Tribunal has not
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yet ordered discovery in that action. While the issue is apparently currently before the Tribunal, no
party has informed this Court as to any orders concerning the issue. Thus, any “risk of conflict”
with the Tribunal’s supposed discovery order or proceedings is speculative at this point. The Court
will not impose a stay based upon mere speculation.
Second, it is apparent by the Petitioner’s brief that it has not agreed with Movants’ proposed
stipulation for discovery; therefore, no good cause exists in this instance. Third, Movants claim that
the August 9, 2011 order may be construed as allowing discovery of privileged and/or work product
information. However, the Court notes that granting the issuance of a subpoena does not have the
same effect as granting a motion to compel. Production pursuant to an issued subpoena is still
subject to Rule 26(b)(5), which governs assertions of privilege and the work product doctrine (to the
extent that they apply here).
Finally, Movants assert that they object to the August 9 order as contrary to law. Movants
point to inconsistencies by the Petitioner in its representations made to the Treaty Arbitration
Tribunal and to this Court. While this argument may go to the likelihood of success on their request
for review of the August 9, 2011 order, the Movants have failed to show how they will be harmed
(irreparably or otherwise) absent a stay; thus, the Court finds Movants’ argument insufficient to
overcome the presumption against a stay under these circumstances. See D.C. Colo. LCivR 30.2B.
III.

Conclusion

Stays of discovery are generally disfavored in this district. See, e.g., Chavez v. Young Am.
Ins. Co., No. 06-2419, 2007 WL 683973, *2 (D. Colo. Mar. 2, 2007). And, pursuant to Local Rule
30.2B, a stay of discovery is not imposed simply upon an objection to a magistrate judge’s order;
rather, the movant must show good cause to overcome the presumption against a stay. Here,
Movants have failed to demonstrate good cause to stay the execution of the August 9, 2011 order

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pending resolution of their objection to the order. Accordingly, for the reasons stated herein, the
Court DENIES the Joint Motion for a Stay of this Court’s August 9, 2011 Order filed by
Respondent Bjorkman and Interested Party Chevron Corporation [filed August 11, 2011; docket
#22].
Dated at Denver, Colorado, this 29th day of August, 2011.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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