Mussington v. Deborah Brosnan & Assocs., LLC
Mussington v. Deborah Brosnan & Assocs., LLC
2023 WL 9112442 (D.D.C. 2023)
December 22, 2023
Harvey, G. Michael, United States Magistrate Judge
Summary
The court granted an application for discovery of ESI under 28 U.S.C. § 1782, allowing the applicants to obtain evidence for use in a foreign proceeding. The court found that the applicants had satisfied the mandatory factors, but the discretionary factors weighed against granting the application due to the burden on the respondent and the lack of relevance of the requested documents to the foreign proceeding.
In re Application of John MUSSINGTON, et al., Applicants,
v.
DEBORAH BROSNAN & ASSOCIATES, LLC, Respondent
v.
DEBORAH BROSNAN & ASSOCIATES, LLC, Respondent
Case No. 23-mc-00093 (TSC/GMH)
United States District Court, District of Columbia
Signed December 22, 2023
Counsel
Christopher Martin Ewell, Wyatt Rawson Gjullin, Marco Simons, Earthrights International, Washington, DC, for Applicant.Daniel Pulecio-Boek, Tonya M. Esposito, Greenberg Traurig, P.A., Washington, DC, for Respondent.
Harvey, G. Michael, United States Magistrate Judge
MEMORANDUM OPINION & ORDER
*1 Under 28 U.S.C. § 1782, a federal district court may compel (1) a person or entity within its district to respond to discovery requests filed by (2) an applicant that has an interest in a legal proceeding that (3) has been, or is reasonably contemplated to be, filed in a foreign or international tribunal. If a court has that authority, then—as directed by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)—it must decide whether to exercise it, taking into account not only conventional discovery issues like relevance and burden, but also the nature of the foreign proceeding and its discovery tools. Here, Applicants John Mussington and Jacklyn Frank, through their attorney-in-fact, Leslie Thomas, have filed an application (the “Application”) pursuant to § 1782 for the issuance of a subpoena to Respondent Deborah Brosnan & Associates, LLC, related to pending legal proceedings in the Judicial Committee of the Privy Council, a court located in the United Kingdom that serves as the court of final appeal in the judicial system of Antigua and Barbuda.[1]
Applicants Mussington and Frank are residents of the island of Barbuda who are challenging the construction of an airport on the island. ECF No. 1-1 at 5. Specifically, in the underlying litigation, Mussington and Frank have sought judicial review in the Eastern Caribbean Supreme Court of the approval of the project by the Development Control Authority of Antigua and Barbuda (DCA), alleging that the approval was premature and based on a deficient environmental impact assessment (EIA), in violation of Antiguan and Barbudan law. See ECF No. 4-3 at 4–5. Leslie Thomas is an attorney in Antigua and Barbuda who represents Mussington and Frank in the underlying litigation. ECF No. 1-2, ¶¶ 1–2. Respondent, Deborah Brosnan & Associates, LLC, is an environmental consulting firm located in the District of Columbia, ECF No. 1-1 at 4; Tr. of Mots. Hr'g at 19 (on file with the chambers of the undersigned), whose “work ranges from risk assessments to designing and implementing large scale ecosystem restoration for resilience and biodiversity, policy development, and investing and business advising on the environment,” ECF No. 4 at 7. Respondent produced an environmental report (the “Brosnan Report”), commissioned by the government of Antigua and Barbuda, related to the construction of the airport that is the subject of the underlying litigation. ECF No. 1-1 at 5; ECF No. 1-2, ¶¶ 28–29. Based on Applicants’ review of that report, they believe Respondent is in possession of three environmental impact assessments (EIAs), and other documents, related to the airport development on Barbuda. See Tr. of Mots. Hr'g at 87–88. They seek those documents from Respondent in this action pursuant to § 1782. ECF No. 1; ECF No. 1-6 at 8.
I. BACKGROUND
A. The Environmental Assessments at Issue
*3 On November 27, 2017, the Antigua and Barbuda Airports Authority (ABAA) applied to the DCA for a development permit for the airport site on the island of Barbuda. ECF No. 1-2, ¶ 16. The ABAA submitted as part of its application a June 2017 EIA regarding the proposed construction of the airport performed by Islands by Design, a Bahamas-based environmental consulting firm (the “June 2017 EIA”). ECF No. 1-2, ¶ 16; Tr. of Mots. Hr'g at 14. Applicants seek production of the June 2017 EIA from Respondent as part of this action, as well as the production of two additional EIAs related to the airport project performed by Islands by Design in May 2018: a revised EIA for the airport (the “May 2018 revised EIA”) and a supplemental EIA for the road leading to the airport (the “May 2018 supplemental EIA”). ECF No. 1-2, ¶ 18(b). As will be discussed, Applicants have sought production of the EIAs in the Eastern Caribbean courts, but to no avail.
Applicants believe that Respondent possesses the 2017 and 2018 EIAs because Applicants have reviewed[4] an additional August 2019 environmental assessment of the airport development completed by Respondent at the request of the government of Antigua and Barbuda.[5] ECF No. 1-2, ¶ 28; Tr. of Mots. Hr'g at 12. Thomas claims, in his declaration, that the Brosnan Report “made extensive reference to the 2017 and 2018 EIAs.” Id., ¶ 29. Respondents appear to dispute that assertion, stating that “the May 2018 ‘supplemental’ EIA related to the road leading to the airport is neither cited nor referenced in” the Brosnan Report, and that, “[a]s to the May 2018 ‘revised’ EIA, Respondent ... has no record of ever reviewing it.” ECF No. 12 at 2–3. Respondent concedes that it possesses a hard copy of the June 2017 EIA, but denies possession of either the May 2018 revised EIA or the May 2018 supplemental EIA. Id.
B. The Foreign Proceedings at Issue
1. Eastern Caribbean High Court and Court of Appeal Proceedings
Antigua and Barbuda's Department of Environment (DOE) visited the airport development site as part of the permit application process on November 28, 2017. ECF No. 1-2, ¶ 16. Applicants allege that the DOE discovered during the site visit that the ABAA had already begun work on the project prior to the issuance of a development permit by the DCA. Id. Eight months later, on July 18, 2018, the DCA granted a development permit for construction of the airport. Id., ¶ 18(a); ECF No. 4 at 8. On August 10, 2018—23 days after the DCA approval—the DOE sent a letter to the DCA recommending that the project be conditionally approved “subject to mitigation recommendations being identified and a commitment for implementation being secured from the developer.” ECF No. 1-2, ¶ 18(b). On September 18, 2018, consistent with the recommendation from the DOE, the DCA sent a letter to ABAA granting “conditional approval” for the project, notwithstanding the fact that an unconditional approval had apparently already been granted two months prior. Id., ¶ 20.
On July 6, 2018—about eight months after the DOE discovered that construction had begun at the airport, and twelve days before DCA first granted a permit for the project—Applicants Mussington and Frank applied to the Antiguan and Barbudan High Court for “leave to apply for judicial review [of the airport construction], and for an injunction stopping construction of the airport.” Id., ¶ 17. The High Court granted the injunction and leave to apply for judicial review on August 2, 2018. Id. The respondents in that matter—the DCA, the ABAA, and the Attorney General of Antigua and Barbuda—appealed the High Court's ruling to the Court of Appeal the following day. Id., ¶ 18. On September 11, 2018, the Court of Appeal set aside the injunction on the grounds that the High Court had refused to hear from the respondents before granting the injunction. Id., ¶ 19.
*4 On September 18, 2018, Applicants applied to the High Court for a new injunction and for disclosure of the EIAs. Id., ¶ 21. On February 7, 2020, the High Court denied the application for an injunction but, according to Thomas, “accepted that John Mussington and Jacklyn Frank had standing, and that they had established that there was a serious issue to be tried.” Id., ¶ 32. The High Court “did not address the EIA disclosure request” in its ruling. ECF No. 1-1 at 9; ECF No. 1-2, ¶ 32. Mussington and Frank appealed the denial of the injunction, and the ABAA counter-appealed, challenging the High Court's finding that Mussington and Frank had standing to bring their claim. ECF No. 1-2, ¶ 32; ECF No. 4-3 at 2.
On April 29, 2021, the Court of Appeal ruled on the appeal and counter-appeal, affirming the High Court's denial of the interim injunction and dismissing the case on the grounds that Mussington and Frank lacked standing. ECF No. 1-2, ¶ 33; ECF No. 4-3 at 2–3. On the issue of standing, Court of Appeal explained:
[I]f it is clear that the applicant does not have even a prima facie case that he has a sufficient interest in the subject matter of the application, permission should not be granted for the matter to proceed to trial. However, if there is a prima facie case that the applicant has a sufficient interest, or if the evidence on standing is unclear, the matter should go forward and be determined at trial. From the evidence presented in this case the appellants do not have sufficient interest in the subject matter of the application within the meaning of Part 56.2 [of the Eastern Caribbean Supreme Court Civil Procedure Rules].[[6]]....... [Mussington and Frank] are and continue to be concerned citizens residing in Barbuda who are aggrieved by the airport development, but they are not adversely affected by it in the sense contemplated by Part 56.2. Further, they are not persons with the appropriate qualifications for bringing this application within the meaning of Part 56.2. In short, I find, with the utmost respect, that they fit the legal description of “busybodies.”
ECF No. 4-3 at 3, 14. As to whether the High Court should have ordered the government to disclose the EIAs, the Court of Appeal explained:
I do not see how the reports can assist on the issue of standing. It is common ground that the first EIA [i.e., the June 2017 EIA] was defective and the second EIA [i.e., the May 2018 revised EIA] was requested by the respondents to address the shortcomings in the first report. The second EIA was considered and accepted by the DoE which in turn recommended that the DCA approve the development on the condition that the Developers adopt and implement specified mitigation and monitoring measures.The content of the second EIA is speculative and I do not see that the appellants can rely on the non-disclosure of that document, or any other document, to give them standing to apply. At best, the second EIA may disclose that the concerns in the first report were not properly addressed. This may give a person with standing a stronger basis for challenging the EIA and the permission to develop the airport, but it does not help the appellants to prove that they have standing to apply under Part 56.2.
Id. at 13–14.
2. Judicial Committee of the Privy Council Proceedings
*5 On December 8, 2021, Applicants Mussington and Frank appealed to the Judicial Committee the Court of Appeal's dismissal of their case, outlining four grounds for their appeal. The first ground was that the Court of Appeal should have applied a UK Supreme Court case in which the court found that an individual has standing to challenge certain “environmental issues” even if not “personally affected in [their] private interests” if they can “demonstrate that they have a genuine interest in the aspects of the environment that they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity.” ECF No. 4-4 at 4–5 (quoting Walton v. Scottish Ministers, [2012] UKSC 44). The second ground for appeal was that the Court of Appeal was wrong to hold “that the issue of standing could be determined against the Applicants before the EIAs had been disclosed.” ECF No. 4-4 at 8. Applicants’ third ground of appeal was that the Court of Appeal should have considered the statutory framework that governed the construction approval process in assessing standing because it gives individual citizens the right to participate in the decision-making process. See ECF No. 4-4 at 9. Their fourth ground for appeal was purely procedural: that the Court of Appeal should not have issued a dispositive ruling on Mussington and Frank's standing to challenge the airport construction in the context of an interlocutory appeal, after the lower court had ruled in their favor on standing. Id. at 9–10.
On November 8, 2023, the Judicial Committee of the Privy Council heard oral argument on Mussington and Frank's appeal. Notwithstanding the fact that the grounds for appeal submitted to the Judicial Committee concerned only the standing issues and not the merits of the case, Lord Hodge[7] stated during oral argument that the Judicial Committee “wishes to hear the respondents on the merits of the case.” ECF No. 11-4 at 10–11. At a few points in the oral argument, the Lords asked the parties to make additional submissions of information to the Committee. See, e.g., ECF No. 11-4 at 234 (in response to Lord Sales asking for the date on which a village council meeting occurred, counsel stated, “I would have to provide that [later],” to which Lord Sales responded, “[y]es, thank you very much.”), 240 (Lord Hodge asking counsel to “provide a written form to the [Judicial Committee] after the [hearing]” with respect to the conditions placed on the conditional approval of the airport project), 361 (Lord Hodge asking counsel if he will “submit to the appellant's team and the court” a June 2021 letter from the Chief Environmental Officer), 391 (Lord Hodge stating, at the conclusion of the hearing, that “further provision of documents” should occur within fourteen days). During the oral argument, the Judicial Committee did express some interest in the contents of the EIAs and potential environmental impacts of the airport project, at least as providing context for the issues before them, although they did not request production of the EIAs themselves. See ECF No. 11-4 at 323–24 (Lord Hodge noting that “all [the Judicial Committee is] making a ruling on is the question of standing,” but then discussing the content of one of the EIAs as described by a letter in the record from the DOE).
As of the date of this Memorandum Opinion and Order, to the Court's knowledge, Applicants’ appeal is still pending before the Judicial Committee.
C. The Section 1782 Application
The Application before the Court is styled as the “Application of John Mussington and Jacklyn Frank, through their attorney-in-fact Leslie Thomas KC, for an Order Granting Leave to Take Discovery from Deborah Brosnan & Associates, LLC Pursuant to 28 U.S.C. § 1782.” ECF No. 1. Applicants submitted Power of Attorney documents which appoint Thomas as
[Mussington's and Frank's] attorney and in [their] name[s] or otherwise and on [their] behalf to ... consider, settle, approve, sign, execute, deliver and issue all agreements, documents, certificates and instruments ... which the Attorney in his absolute discretion considers desirable in connection with the pursuit of an action under the Foreign Legal Assistance Act (FLA) in the United States of America to obtain disclosure of documents relating to the construction of an airport on Barbuda ....
*6 ECF No. 5-2 at 2, 4.
In their Application, Applicants ask the Court for “an order granting Applicants leave to take discovery from Respondent Deborah Brosnan & Associates, LLC, for use in pending proceedings before the Judicial Committee of the Privy Council ... to which Applicants are parties.” ECF No. 1 at 2. Specifically, they seek discovery of
[a]ll documents Deborah Brosnan & Associates, LLC consulted and cited in preparing the August 2019 environmental assessment of the international airport on the island of Barbuda [i.e., the Brosnan Report], including but not limited to:
a. The June 2017 Environmental Impact Assessment prepared by Islands of Design for the airstrip of a new international airport on the island of Barbuda.b. The May 2018 revised Environmental Impact Assessment for the new international airport on the island of Barbuda prepared by Islands by Design.c. The May 2018 supplemental Environmental Impact Assessment for the road leading to the new international airport on the island of Barbuda prepared by Islands by Design.
ECF No. 1-6 at 8. Applicants assert that these “narrow requests are directly related to the proceeding pending before the Judicial Committee” because they “all concern the environmental and health impacts of the construction of the airport that are central to Applicant's arguments regarding standing.” ECF No. 1-1 at 10–11.
II. LEGAL STANDARD
Section 1782 provides, in relevant part:
The district court of the district in which a person resides or is found may order him to give his testimony 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 pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person .... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
28 U.S.C. § 1782(a). A two-stage inquiry informs whether a federal court will grant a motion under § 1782(a). First, the court must determine whether it can order the requested relief—that is, whether it has the authority to do so; second, it must decide whether it should order the requested relief—that is, whether to exercise its discretion to do so, keeping in mind the statute's “twin aims of ‘providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance in our courts.’ ” Intel Corp. v. Advanced Micro Directives, Inc., 542 U.S. 241, 252, 255 (2004) (quoting Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002)).
As to the first step, “[a] district court has the authority to grant an application when ... (1) the person from whom discovery is sought resides or is found within the district; (2) the discovery is for use in a proceeding before a foreign or international tribunal; and (3) the application is made by an interested person.” In re Veiga, 746 F. Supp. 2d 8, 17 (D.D.C. 2010) (citing 28 U.S.C. § 1782(a)). The second step is informed by the following four factors outlined by the Supreme Court in Intel: (1) whether the target of the discovery request is a participant in the foreign or international proceeding, (2) the nature of the foreign tribunal and character of its proceedings, (3) whether the application is an attempt to “circumvent foreign proof-gathering restrictions or other policies,” and (4) whether the request is “unduly intrusive or burdensome.” Id. (quoting Intel, 542 U.S. at 264–65). “The discretionary guidelines in Intel do not command that each factor be weighed equally, nor do they dictate whether any particular factor should take preceden[ce].” In re Application of Leret, 51 F. Supp. 3d 66, 71 (D.D.C. 2014). Rather, these factors are merely designed to “guide” a court adjudicating a § 1782 discovery application. See Intel, 542 U.S. at 247. Furthermore, “the Intel factors are non-exhaustive, and a court may exercise its discretion to deny a petition based on other considerations.” In re Republic of Turkey, No. 19-cv-20107, 2020 WL 4035499, at *2 (D.N.J. July 17, 2020) (citing Kulzer v. Esschem, Inc., 390 F. App'x 88, 92 (3d Cir. 2010)); see also In re Application of Lucille Holdings PTE Ltd. under 28 U.S.C. § 1782, No. 21-mc-99, 2022 WL 1421816, at *7 (D.D.C. May 5, 2022); In re Bayerische Motoren Werke AG, No. 19-mc-80272, 2019 WL 5963234, at *3 (N.D. Cal. Nov. 13, 2019); JSC MCC EuroChem v. Chauhan, No. 17-mc-5, 2018 WL 3872197, at *3 (M.D. Tenn. Aug. 15, 2018) (“In Intel Corp., the Court repeatedly emphasized that these factors are non-exhaustive and ‘may’ be taken into account as applicable.” (quoting Intel, 542 U.S. at 264–65)).
III. DISCUSSION
A. Statutory Requirements
1. The person or entity from whom discovery is sought resides or can be found within the district.
*7 “Courts appear to agree” that a business entity “is ‘found’ in a district where it is headquartered or incorporated.’ ” In re DiGiulian, No. 19-cv-132, 2020 WL 5253849, at *3 (D.D.C. Sept. 3, 2020) (quoting In re Application of Masters, 315 F. Supp. 3d 269, 274 (D.D.C. 2018)). Common principles of personal jurisdiction inform this analysis. See In re Pishevar, No. 21-mc-105, 2023 WL 2072454, at *2 (D.D.C. Feb. 17, 2023); In re Application of Thai-Lao Lignite (Thailand) Co., 821 F. Supp. 2d 289, 294 n.4 (D.D.C. 2011) (noting that, “[a]t minimum,” the inquiry as to whether the target of a § 1782 application resides or can be found within the district “overlap[s] considerably” with that of the court's subject matter and personal jurisdiction over that entity).
Here, Respondent, Deborah Brosnan & Associates, LLC, is a limited liability company headquartered in the District of Columbia. See ECF No. 1-1 at 11; ECF No. 1-4 at 1. Respondent concedes it is an entity located within the District of Columbia. Tr. of Mots. Hr'g at 19. The Court finds this statutory requirement is satisfied.
2. The discovery is for use in a proceeding before a foreign or international tribunal that is pending or reasonably contemplated
Applicants’ primary argument under this factor is that the documents they seek are “for use” in the appellate proceedings currently pending before the Judicial Committee. That the Judicial Committee is a “foreign tribunal,” and that Mussington's and Frank's appeal before it is “pending,” is undisputed by the parties. Respondent does, however, dispute Applicants’ assertion that the discovery they seek is “for use” in that proceeding.
As a court in this Circuit has observed:
[I]n enacting § 1782(a), Congress did not intend for district courts to assess the weight of individual pieces of evidence in excruciating detail, and then attempt to discern the precise nexus between such evidence and the claims and defenses raised in the foreign proceeding. Indeed, such an effort would run counter to the salutary statutory objective of providing fair and efficient assistance to participants in international litigation.
In re Veiga, 746 F. Supp. 2d 8, 18 (D.D.C. 2010). Rather, under this factor, the applicant must only establish (1) “that he or she has the practical ability to inject the requested information into a foreign proceeding” and (2) that the information “will be employed with some advantage or serve some use in the proceeding.” Bouvier v. Adelson (In re Accent Delight Int'l Ltd.), 869 F.3d 121, 132 (2d Cir. 2017) (quoting Mees v. Buiter, 793 F.3d 291, 298 (2d Cir. 2015)). “The burden imposed on the applicant [under this factor] is de minimis,” and “district courts need not determine that the evidence would actually, or even probably, be admissible in the foreign proceeding.” Veiga, 764 F. Supp. 2d at 18.
With respect to Applicants’ “practical ability to inject the requested information” into the proceedings before the Judicial Committee, the declaration of Leslie Thomas—an attorney who practices before the Eastern Caribbean courts—explains that in Antigua and Barbuda, new evidence may be admitted on appeal if the court finds that it meets three jurisprudential factors:
(1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be apparently credible, though it need not be incontrovertible.
*8 ECF No. 1-2, ¶ 47. That test makes no reference to the timing of those submissions, and Thomas admits in his supplemental declaration that if this Application were granted after November 8, 2023—the date of the oral argument before the Judicial Committee—“it would be more difficult to adduce the documents sought,” but that Applicants could, nonetheless, “in principle apply to the Judicial Committee for permission to adduce the documents, including the EIAs, after the hearing and before judgment and it would be a matter of discretion for the Judicial Committee as to their admission.” ECF No. 5-1, ¶ 5. Applicants also cite a Judicial Committee rule, Practice Direction 7.11.1, which provides:
If, after the conclusion of the argument on an appeal, a party wishes to bring to the notice of the Judicial Committee new circumstances which have arisen and which might affect the decision or order of the Judicial Committee, application must be made without delay by letter to the Registrar for permission to make new submissions.
ECF No. 11 at 2. Applicants also claim that “[t]he Judicial Committee is already considering whether, in its discretion, to admit additional factual evidence that Applicants have already submitted for review and would do the same here.” Id. (italics omitted). In opposition, Respondent states that it
has not identified any case where the Privy Council addressed the submission of new evidence after hearing the matter nor where the Privy Council addressed the submission of evidence obtained via a § 1782 petition .... As such, based on the information available to Respondent, there is no precedent in the Privy Council for the submission of new evidence after a hearing ....
ECF No. 12 at 3–4.
Because the Court's proper inquiry at this stage is limited to identifying whether there is some path by which Applicants can inject the documents they seek here into the proceedings in Antigua and Barbuda, the Court will refrain from engaging in an analysis of the precedent and rules of the Judicial Committee to determine whether it is likely to accept that material. The Court is satisfied from Thomas's declarations and, in particular, the Judicial Committee's apparent openness—expressed during oral argument—to considering additional evidence that had not been submitted prior to the hearing, that there is some path, however narrow, by which Applicants could “inject” the discovery they seek into the proceedings pending before the Judicial Committee. Therefore, the Court finds that Applicants have satisfied their de minimis burden of showing their “practical ability to inject the requested information into a foreign proceeding.” Bouvier, 869 F.3d at 132.
The Court next considers whether the information Applicants request “will be employed with some advantage or serve some use in the proceeding.” Id. at 132 (quoting Mees, 793 F.3d at 298). Applicants claim that the documents they seek “all concern the environmental and health impacts of the construction of the airport that are central to Applicants’ arguments regarding standing.” ECF No. 1-1 at 10–11. After reviewing Applicants’ Grounds for Appeal to the Judicial Committee, ECF No. 4-4, it is not clear to the Court how the documents Applicants request would inform directly on any of their four express grounds for appeal. However, at oral argument, the Judicial Committee did express interest in the merits of the case, discussed briefly the contents of the EIAs (as described in other documents), and discussed the potential environmental impacts of the airport project, at least as providing context for the issues before them on appeal. See ECF No. 11-4 at 10–11 (“[The Judicial Committee] wishes to hear the respondents on the merits of the case”), 309 (“Was there or was there not an acoustic assessment in the EIA?”), 324 (“Did your clients conduct an acoustic survey? ... These [documents] are from people that did actually review such EIAs as exist, and they're positively saying there was not one.”). It seems plausible, therefore, that the Judicial Committee could find the documents helpful to provide context for their decision. Recognizing the imprudence of wading any further into an analysis of a foreign legal system, see Veiga, 764 F. Supp. 2d at 18, the Court is satisfied from the record that Applicants have met their de minimis burden of showing that the information “will be employed with some advantage or serve some use in the [foreign] proceeding.” Mees, 793 F.3d at 298.
3. The application is made by an “interested person”
*9 As to the third requirement, the Supreme Court has defined an “interested person” as a person or entity that “possess[es] a reasonable interest in obtaining [judicial] assistance.” Intel, 542 U.S. at 256 (alterations in original) (quoting Smit, International Litigation under the United States Code, 65 Colum. L. Rev. 1015, 1027 (1965)). “The legislative history of § 1782 makes plain that ‘interested person’ incudes ‘a party to the foreign ... litigation.’ ” Lancaster Factoring Co. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996) (quoting S. Rep. No. 1580, at 8 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3789).
It is undisputed that Applicants Mussington and Frank are parties to the foreign litigation in which they ostensibly seek to use the requested discovery. However, the analysis is complicated somewhat by the fact that Mussington and Frank have submitted their Application “through their attorney-in-fact Leslie Thomas.” ECF No. 1 at 1, 2 & n.1. Applicants point to precedent for such a method in Kiobel ex rel. Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018), where the Second Circuit upheld the jurisdiction of the district court over an application similarly filed by an interested person through an attorney-in-fact—though the Second Circuit did not directly address the “attorney-in-fact” issue in its opinion. Applicants assert that Thomas brings the action “in the name of the real parties in interest,” and that, therefore, “only [Mussington's and Frank's] interest in the foreign proceeding, not Mr. Thomas's, matters.” ECF No. 5 at 3–4. In opposition, Respondent argues that the method is “highly unusual” and that the Court should deny the Application as failing to meet this statutory requirement because Thomas's role as attorney-in-fact does not make him a “real party in interest.” ECF No. 4 at 14–15.
While neither the parties nor the Court have identified caselaw directly addressing whether a § 1782 application filed through an attorney-in-fact satisfies the “interested person” requirement of the statute where the attorney-in-fact is not, themselves, a party to the foreign litigation, the Court has identified one analogous case. In Lancaster Factoring, the Italian-court-appointed bankruptcy trustee of an Italian corporation, Laboverto, retained a U.S. company, Lancaster, as its agent to pursue Laboverto's assets in the United States. See 90 F.3d at 39. Lancaster filed an application pursuant to § 1782 seeking leave to subpoena a U.S. company for information relevant to the Italian bankruptcy proceedings. See id. The Second Circuit found that the respondent's contention that Lancaster was not an “interested party” had no merit because “as petitioner in the present [§ 1782] action, Lancaster is the agent for Laboverto's trustee in bankruptcy ... [, and b]y virtue of that agency and the status of its principal, Lancaster is an interested person within the meaning of § 1782.” Id. at 42. While it is not clear whether the relationship between Lancaster Factoring and Laboverto was established by a power of attorney document, there was, at least, an analogous principal-agent relationship between the two entities. See id. Furthermore, in Lancaster Factoring, there were two degrees of separation between the applicant, Lancaster—which filed the application in its own name—and the directly interested party, Laboverto. Here, there is only one degree of separation between Thomas and Applicants Mussington and Frank, and Thomas brings the application not in his own name, but in the name of the directly interested parties. The Court is persuaded by the Second Circuit's reasoning in Lancaster Factoring and finds that the instant Application is brought by an “interested party” within the meaning of § 1782.[8]
*10 Accordingly, the Court finds that the mandatory factors for exercise of its authority under § 1782 are satisfied.
B. Discretionary Factors
The Applicants’ showing with respect to the discretionary § 1782 factors is not as successful, however. For the reasons stated below, the Court will exercise its discretion under the statute and deny the Application.
1. Whether the target of the discovery request is a participant in the foreign proceeding
As the Intel Court explained, driving this discretionary factor is the fact that “[a] foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence.” Intel, 542 U.S. at 264. “In contrast, nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent § 1782(a) aid.” Id. In other words, this factor “is concerned with ‘the foreign tribunal's ability to control the evidence and order production, not the nominal target of the § 1782 application.’ ” In re Accent Delight Int'l Ltd., No. 16-mc-125, 2018 WL 2849724, at *4 (S.D.N.Y. June 11, 2018) (quoting In re OOO Promnesfstroy, No. 19-mc-99, 2009 WL 3335608, at *5 (S.D.N.Y. Oct. 15, 2009)), aff'd, 791 F. App'x 247 (2d Cir. 2019). Such an interpretation finds further support in § 1782’s “twin aims of ‘providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance in our courts.’ ” Intel, 542 U.S. at 252. Ordering the production of documents that could easily have been ordered produced by the foreign tribunal does little to encourage foreign countries to provide similar assistance to U.S. courts because the “assistance” it provides is not helpful to the foreign country's tribunal and may indeed interfere with foreign tribunal's authority and ability to control its own proceedings.
Here, the parties agree that Respondent—Deborah Brosnan & Associates, LLC—is not, itself, a participant in the foreign proceeding. However, the primary documents the Applicants seek from Respondent—the EIAs—are presumably in the possession of the DCA, or are at the very least within its control, and the DCA is a foreign government entity participating in the foreign proceeding. Indeed, Respondent has submitted in opposition to the § 1782 Application a letter from the Parliamentary Secretary of the Antigua and Barbuda Ministry of Housing, Works, Lands and Urban Renewal stating that “should any party wish to request [the EIAs], that ought to be done through the Development Control Authority.” See ECF No. 4-6. Because those documents are in the possession or control of a party to the foreign litigation, the foreign tribunal has the “ability to control the evidence [at issue] and order production.”[9] In re Accent Delight, 2018 WL 2849724, at *4 (S.D.N.Y. June 11, 2018) (quoting OOO Promnesfstroy, 2009 WL 3335608, at *5). The Court finds, therefore, that although Respondent is not nominally a participant in the foreign proceeding underlying this Application, this Intel factor weighs against granting the application because the assistance of U.S. courts is not necessary to the production of the requested documents in the foreign tribunal and, as will be discussed in greater detail below, a § 1782 order may have a negative impact on the efficiency and order of the foreign proceedings at issue.[10]
2. Nature of the foreign tribunal and character of its proceedings
*11 This factor considers the nature of the foreign tribunal, the character of the proceedings, and the receptivity of the foreign court to U.S. judicial assistance. See Intel, 542 U.S. at 264. In considering the character of the proceedings, one factor courts examine is whether the application will detract from the orderly and efficient disposal of the proceeding in the foreign tribunal. See, e.g., In re Caratube Int'l Oil Co, LLP, 730 F. Supp. 2d 101, 107 (D.D.C. 2010) (finding the Applicant's inexcusable delay in filing its petition late in the discovery process of the foreign proceeding counseled against granting the petition); In re Digitechnic, No. C07-414, 2007 WL 1367697, at *5 (W.D. Wash. 2007) (denying a § 1782 application because of the applicant's “complete failure to justify the timing of the request,” among other things). In considering the receptivity issue, courts in the United States presume that foreign tribunals will be receptive to evidence obtained here, and ordinarily consider “only authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section 1782.” In re Pishevar, 2023 WL 2072454, at *3 (quoting In re DiGiulian, 314 F. Supp. 3d 1, 8 (D.D.C. 2018); see, e.g., In re Barnwell Enters., 265 F. Supp. 3d 1, 11 (D.D.C. 2017) (finding that to deny a § 1782 petition on receptiveness grounds, the Court must find that there is no “clear and unequivocal indication that the foreign tribunal would not be receptive to the evidence sought” (quoting Veiga, 746 F. Supp. 2d at 18)).
Here, there is no evidence or contention that the Eastern Caribbean courts, or the United Kingdom courts, are not generally receptive to assistance obtained from the United States through § 1782 applications. However, Applicants’ delay in filing their application raises serious concerns whether granting the Application will detract from the orderly and efficient disposal of the proceedings in Antigua and Barbuda. Applicants knew in April 2021 that the Court of Appeal had denied their appeal and was not going to grant their request for discovery of the EIAs, ECF No. 1-2, ¶ 33; ECF No. 4-3 at 3, and they knew in August 2019 that Respondent had relied on the EIAs to produce its report, ECF No. 1-2, ¶ 28, which is what led them to believe that Respondent possesses those documents. Therefore, Applicants were in a position to file this Application as early as mid-2021, but did not do so until September 2023, just weeks prior to oral argument before the Judicial Committee.[11] A hearing was held before the Judicial Committee on November 8, 2023, see ECF No. 11-4; that court is presumably now in the process of rendering a decision. At this late stage, trying to introduce new evidence into the proceeding is likely to impede the orderly and efficient functioning of that court, not help it. This factor weighs against granting the Application.
3. Whether the application is an attempt to circumvent foreign proof-gathering restrictions or other policies
*12 Where an applicant files a § 1782 request after having requested the same or similar discovery through the foreign tribunal and been denied, it creates the appearance of circumvention of foreign proof-gathering restrictions. See Islamic Republic of Pakistan v. Arnold & Porter Kaye Scholer LLP, No. 18-mc-103, 2019 WL 1559433, at *7 (D.D.C. Apr. 10, 2019). While district courts are neither bound by the rulings of foreign tribunals nor by foreign proof-gathering restrictions or policies, this discretionary factor—along with the principle of comity that underlies it—counsels that such rulings should inform the district court's discretionary assessment under § 1782. See ZF Auto. US, Inc. v. Luxshare, Ltd., 596 U.S. 619, 632 (2022) (“[T]he animating purpose of § 1782 is comity.”); Intel, 542 U.S. at 261 (noting that in exercising their discretion in particular cases, “comity and parity concerns may be legitimate touchstones” for district courts); see also, e.g., Islamic Republic of Pakistan, 2019 WL 1559433, at *7 (finding that the foreign tribunal's ruling as to the discoverability of documents and the burdensomeness of discovery requests “militates strongly against granting the Application”).
While § 1782 does not impose a foreign discovery exhaustion requirement—that is, it does not require that an application first seek the material at issue in the foreign tribunal—the question of foreign discoverability is distinct from the question of circumvention. See Mees, 793 F.3d at 303 & n.20 (“That a country does not enable broad discovery within a litigation does not mean that it has a policy that restricts parties from obtaining evidence through other lawful means.”). The circumvention factor asks whether the § 1782 application disguises an end-run around rules, policies, or rulings in the foreign jurisdiction that affirmatively prohibit or preclude discovery of the material in question. Here, the High Court did not rule on Applicants’ request for discovery of the EIAs, and the Court of Appeal specifically denied Applicants’ claim that the High Court should have ordered their production and considered them in assessing the Applicants’ prima facie showing of standing necessary to apply for judicial review under Part 56.2 of the Eastern Caribbean Civil Procedure Rules. According to the Eastern Caribbean Court of Appeal:
From the evidence presented in this case the appellants do not have sufficient interest in the subject matter of the application within the meaning of Part 56.2. As such, the respondents are not obliged to disclose the EIAs to them and they cannot rely on the absence of those documents as a way to bolster their claim for standing in this matter.
ECF No. 4-3 at 3. Because Applicants are seeking here primarily documents that they have been denied in the foreign proceedings, the Court finds that the Application is an attempt to circumvent a foreign proof-gathering restriction.
In arguing that the Court should not find that this factor weighs against granting their Application, Applicants cite a case from the Southern District of New York, In re Aso, No. 19-mc-190, 2019 WL 2345443 (S.D.N.Y. Jun. 3, 2019), where the district court granted a § 1782 application for discovery of documents the production of which the foreign court had already denied. That decision is not binding on this Court and, in any event, is distinguishable from the facts here. In Aso, the district court rested its decision on the fact that the foreign court had denied the request without explanation, and that the reason for denial may have been that the requested discovery was outside the jurisdiction of the foreign court because it was in the possession of non-parties residing outside the jurisdiction. Id. at *7 (“It is unclear whether the Japanese court had the authority to order discovery from non-parties who reside outside the court's jurisdiction, and resort to § 1782 may be the only avenue by which [applicant] can obtain the discovery she seeks. [Applicant]’s request for assistance may therefore reflect a reasonable effort to overcome a technical discovery limitation.”). Here, by contrast, the EIAs are in the possession or control of a party to the foreign proceedings—the DCA—and the Eastern Caribbean Court of Appeal has explicitly considered and denied Applicants’ request for their production on the grounds that they would be of no assistance to determining the issue of standing—a ruling that stands in that jurisdiction unless and until the Judicial Committee disturbs it. On those facts, the Court has no difficulty concluding that the Applicants are attempting to make an end-run around a foreign proof-gathering restriction. As the Court believes granting such a request would be antithetical to the comity principles underlying § 1782, the Court finds this factor weighs heavily against granting the Application.
4. Whether the request is unduly intrusive or burdensome
*13 Courts have interpreted the inquiry under this factor to encompass “the relevance of the requested discovery to the foreign proceeding.” Hulley Enters. Ltd. v. Baker Botts LLP (In re Order Pursuant to 28 U.S.C. § 1782), No. 17-mc-1466, 2017 WL 3708028, at *4; see also In re de Leon, No. 19-mc-0197, 2020 WL 1047742, at *3 (D.D.C. Mar. 4, 2020) (finding the fourth factor weighed in favor of granting the application, even where “compliance might be costly and complex,” because the “requests [were] tailored to issues ... relevant to the ... proceedings”). In other words, a district court might be more willing to impose a burden on the target of the § 1782 request where the discovery is highly relevant to the foreign proceeding, and less willing to do so where the relevance of the material is more attenuated. Although a court may narrow a request to tailor it to relevant information, see, e.g., Barnwell, 265 F. Supp. 3d at 14, a court has “no obligation to trim [an applicant's] discovery request after it determine[s] it was overbroad” and does not abuse its discretion by denying the application outright, Lazaridis v. Int'l Ctr. for Missing & Exploited Children (In re Application for an Order Pursuant to 28 U.S.C. 1782), 473 F. App'x 2, 4 (D.C. Cir. 2012).
Here, the Court has the benefit of a ruling from the foreign tribunal on the question of whether the discovery Applicants primarily seek here is of assistance in the foreign proceeding. The Eastern Caribbean Court of Appeal ruled, unequivocally, that production of the EIAs would not be of “assist[ance]” on the question of Applicants’ “standing to apply under Part 56.2.” ECF No. 4-3 at 13-14. While the foreign court's ruling is not dispositive on this Court's assessment of the reasonableness of the burden imposed by this § 1782 application, unless and until that ruling is disturbed by a ruling of the Judicial Committee, the undersigned finds it persuasive.[12] In light of that ruling, the Court further finds that any burden placed upon Respondent to produce those materials in this action that is not de minimis is “undue” under this discretionary factor. As to the request for “[a]ll [other] documents [Respondent] consulted and cited in preparing the August 2019 environmental assessment,” ECF No. 1-6 at 8, Applicants have not presented even a prima facie argument to this Court—nor, as far as the record shows, to the Eastern Caribbean courts—as to how that unspecified trove of documents would assist the Eastern Caribbean courts on the question of whether Applicants “have sufficient interest in the subject matter of the application within the meaning of Part 56.2.,” ECF No. 4-3 at 3. Indeed, the Court has little to no information about what those other documents are or their relevance to the foreign proceeding.
Respondent concedes that the burden of producing the single EIA it claims is in its possession is “none.” Tr. of Mots. Hr'g at 82–83. Respondent argues, however, that the burden it would face to fulfil Applicants’ broader request for “all documents that [Respondent] consulted and cited” in drafting the Brosnan Report is “unduly burdensome” because it is “vague and overly broad” and would require them to “reconstruct months of complicated work and attempt to gather every single source [Dr. Brosnan] consulted when preparing her [report] over four years ago.” ECF No. 4 at 21–22. Applicants question that assertion and express their expectation that a firm run by a scientist such as Dr. Brosnan would have, in an organized digital file, the cache of documents on which they relied to produce their report. Tr. of Mots. Hr'g at 87, 91–92. The Court need not wade further into that question of fact because it is satisfied, based on Respondent's representations, that the burden the Applicant's request would impose on Respondent is not de minimis.
*14 Therefore, the Court finds that this discretionary Intel factor also weighs against granting the Application.
IV. CONCLUSION
In sum, this Court finds that Applicants have satisfied the mandatory factors under § 1782 to show that they are “interested parties” who are seeking discovery “for use in a foreign proceeding” that is “pending or reasonably contemplated.” The Court further finds, however, that all the discretionary factors set forth in Intel counsel against granting the Application. In light of that finding, and exercising its discretion under § 1782 with an eye to the principles of judicial efficiency, reciprocity, and comity that underlie the statute, the Court declines to grant the Application.
If the Judicial Committee were to deny Applicants’ appeal, their case is over, those proceedings will no longer be “pending,” and any possible need Applicants may have for the documents they seek for use in that foreign proceeding would be extinguished. If, on the other hand, the Judicial Committee were to grant Applicants’ appeal, the Eastern Caribbean courts are the forum in which Applicants should address the discovery they seek from the DCA, which is a party in the lawsuit the Applicants brought in those courts.
For the foregoing reasons, it is hereby
ORDERED that the Petitioners’ Application for an Order Granting Leave to Take Discovery from Deborah Brosnan & Associates, LLC, Pursuant to 28 U.S.C. § 1782 is DENIED.
Footnotes
Barbuda is one of two inhabited islands comprising the nation of Antigua and Barbuda. ECF No. 1-2, ¶ 5. Antigua and Barbuda is an independent sovereign state and is served by the Eastern Caribbean Supreme Court, which “is divided into the High Court, which is the superior trial court of unlimited jurisdiction, and the Court of Appeal, which hears appeals from the High Court.” Id., ¶¶ 5, 7. “Appeals from the Court of Appeal are heard by the Judicial Committee of the Privy Council ..., which has the same membership as the UK Supreme Court, and is the highest and final court of Antigua and Barbuda.” Id., ¶ 8. In the record before this Court, the parties varyingly refer to the Judicial Committee of the Privy Council, in short, as either the “Judicial Committee” or the “Privy Council.” For the sake of consistency, when shortening the name of that court in this Memorandum Opinion and Order, the Court will use only the term “Judicial Committee.”
The docket entries relevant to this Memorandum Opinion and Order are: (1) Application for Leave to Take Discovery, ECF No. 1, and attachments; (2) Memorandum in Opposition, ECF No. 3, and attachments; (3) Reply in Support of the Application, ECF No. 5, and attachments; (4) First Notice of Supplemental Authority by Applicants, ECF No. 8; (5) First Notice of Supplemental Authority by Respondent, ECF No. 9; (6) Second Notice of Supplemental Authority by Applicants, ECF No. 11, and attachments; and (7) Second Notice of Supplemental Authority by Respondent, ECF No. 12, and attachment. Citations herein to page numbers in documents filed on the Court's electronic filing system reflect the page numbers assigned by that system rather than the original page numbers of the document, to the extent those numbers are different. The transcript of the motions hearing held on November 17, 2023, referenced herein, does not appear on the docket but is on file with the chambers of the undersigned.
“Since the Court's decision on a Section 1782 application is non-dispositive, it may be decided by a magistrate judge by opinion and order, rather than a report and recommendation to the district court.” In re Application of Shervin Pishevar for an Order to take Discovery for use in Foreign Proceedings Pursuant to 28 U.S.C. § 1782, 439 F. Supp. 3d 290, 301 (S.D.N.Y. 2020) (citing In re Hulley Enterprises Ltd., 400 F. Supp. 3d 62, 71 (S.D.N.Y. 2019) (“This Court agrees with the majority of courts finding that rulings on § 1782 applications are not dispositive.”)), adhered to on reconsideration sub nom. In re Pishevar, No. 19-mc-503, 2020 WL 1862586 (S.D.N.Y. Apr. 14, 2020); see also In re Pons, 614 F. Supp. 3d 1134, 1141 (S.D. Fla. 2020) (noting that “[t]he great majority of courts to address the issue” have determined that a magistrate judge may dispose of “Section 1782 discovery motions” by order rather than by report and recommendation and collecting cases). That said, the D.C. Circuit has recently held that an appeal of a magistrate judge's decision on a § 1782 application must first be addressed by a district judge pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(a) of the Federal Rules of Civil Procedure before it can be appealed to the Circuit. See Menashe v. Covington & Burling, No. 21-mc-7091, 2022 WL 3954902 (D.C. Cir. Jan. 6. 2022) (dismissing appeal for lack of jurisdiction because a district judge had not yet ruled on objections to a magistrate judge's decision pursuant to Rule 72(a)); cf. Charter Oil Co. v. Am. Emp'rs’ Ins. Co., 69 F.3d 1160, 1171–72 (D.C. Cir. 1995) (holding that the D.C. Circuit lacked jurisdiction over an appeal of a magistrate judge's order on a non-dispositive dispute where no objections were filed to the order pursuant to Rule 72(a)). Accordingly, if either party intends to appeal this Memorandum Opinion and Order, it must first file objections to this order with the assigned District Judge. “The district judge ... must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also Local Civil Rule 72.2(c).
The Chairman of the Barbuda Council provided the Brosnan Report to Mussington on August 23, 2019. ECF No. 1-2, ¶ 28.
The parties dispute whether this report was commissioned solely by the government or jointly with the Barbuda Ocean Club, a private entity. See Tr. of Mots. Hr'g at 12–13. That dispute is not material to any of the issues before the Court.
Part 56.2 of the Civil Procedure Rules 2000 provides that “[a]n application for judicial review may be made by any person, group or body which was sufficient interest in the subject matter of the application,” which includes
(a) any person who has been adversely affected by the decision which is the subject of the application; (b) any body or group acting at the request of a person or persons who would be entitled to apply under paragraph (a); (c) any body or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application; (d) any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application; (e) any statutory body where the subject matters falls within its statutory limit; or (f) any other person or body who has a right to be heard under the terms of any relevant enactment or Constitution.
ECF No. 4-3 at 6–7.
The Judicial Committee has the same membership as the UK Supreme Court. ECF No. 1-2, ¶ 8. Judges of the UK Supreme Court are referred to as “Lord” or “Lady.” Faculty of Law, University of Oxford, Oxford University Standard for the Citation of Legal Authorities 19 (4th Ed.).
While not relevant to the statutory analysis, Applicants have stated that if the Court were to deny the Application on the basis that Thomas is not an “interested party,” Applicants Mussington and Frank could—and would—simply refile the application without Thomas in the caption. Tr. of Mots. Hr'g at 46.
Applicants assert that this factor should weigh in their favor because the Judicial Committee (as opposed to the Eastern Caribbean courts) is without power to order the Antiguan and Barbudan government, through the DCA, to produce the EIAs. Tr. of Mots. Hr'g at 50. Respondents counter that the only reason the Judicial Committee cannot order the production of the EIAs at this point is that Applicants did not raise the Court of Appeal's denial of their EIA production request as an issue on appeal to the Judicial Committee. Id. at 53. The Court agrees with Respondent and, finding that the Judicial Committee's lack of power to order production is a limitation of Applicants’ own making, does not find that this tips this factor in Applicants’ favor.
In looking beyond how the Intel Court expressed this factor and to its underlying motivation, the Court reiterates that “the Intel factors are non-exhaustive, and a court may exercise its discretion to deny a petition based on other considerations.” Republic of Turkey, 2020 WL 4035499, at *2 (citing Kulzer, 390 F. App'x at 92); see Section II, supra.
Applicants respond that they “come to this Court as a last resort after several years of trying to obtain the undisclosed EIAs through non-litigation means, including through the aid of partners, and from the governmental defendant in the lower courts,” and that their “good faith efforts to only come to the U.S. court for judicial assistance when all other avenues have proven unsuccessful should not be used by this Court against Applicants to deny this request.” ECF No. 5 at 7–9. Between April 2021 and September 2023, the record reflects that Applicants made three attempts to obtain the EIAs: (1) a November 2021 email from their partners at the Global Legal Action Network to Respondent requesting the EIAs, ECF No. 4-8; (2) a July 2023 request to the DCA under the Antigua and Barbuda Freedom of Information Act, ECF No. 5-4; and (3) a September 2023 letter from Applicants to Respondent requesting the EIAs, ECF No. 4-5. That is, over the course of 28 months—including a 20-month period from November 2021 to July 2023 in which they apparently initiated no new requests or other efforts to obtain the documents they seek—Applicants made three requests. This record does not provide persuasive explanation for Applicants’ delay in bring their § 1782 application in this Court so that the documents they seek might be submitted timely to the Judicial Committee for consideration in their pending appeal.
Even if the Judicial Committee were to reverse the ruling of the Court of Appeal on this issue, the Eastern Caribbean courts are the more appropriate forum—for the reasons discussed above—in which to litigate (or relitigate) the discovery of the EIAs.