Opinion
Civil Action No. 11-cv-01470-WYD-MEH
11-30-2012
In re: APPLICATION OF THE REPUBLIC OF ECUADOR and DR. DIEGO GARCIA CARRION, the Attorney General of the Republic of Ecuador, Applicants, v. For the Issuance of a Subpoena Under 28 U.S.C. § 1782(a) for the Taking of a Deposition of and the Production of Documents by BJORN BJORKMAN for Use in a Foreign Proceeding, Respondent.
Chief Judge Wiley Y. Daniel
ORDER DENYING MOTION FOR STAY
THIS MATTER is before the Court on Chevron Corporation and Bjorn Bjorkman's Motion to Stay this Court's October 4, 2012 Order Pending Appellate Review [DE-90]. Chevron seeks a stay pending appeal of my Order affirming and adopting Magistrate Judge Hegarty's recommendation that required Chevron to produce certain documents. As noted by Chevron in its motion, in determining whether to issue a stay pending appeal, I consider the following factors: (1) whether the applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Securities Investor Protection Corp. v. Blinder, Robinson & Co., Inc., 962 F.2d 960, 968 (10th Cir. 1992). Chevron has not shown a likelihood of success on the merits. Since I entered my Order affirming Magistrate Judge Hegarty's recommendation, two more district courts have entered similar rulings. See In re Republic of Ecuador (Mackay), No. 12-mc-00008 (E.D. Cal. Feb. 21, 2012) and Republic of Ecuador, et al v. Kelsh, No. 11-mc-80171, at 1 (N.D. Cal. Apr. 12, 2012). Nothing in Chevron's motion or reply suggests that I or the district judges in California have erred in reaching similar rulings. Moreover, the absence of direct authority on this issue from an appellate court does not render my rulings advisory or suggest that the Tenth Circuit might rule differently. As such, Chevron has not established a likelihood of success on the merits.
The remaining factors also support the denial of a stay. While Chevron argues it will be prejudiced by producing the discovery at issue here, the dim prospects for appellate success lessen any such concerns. Chevron has also failed to establish that the Republic of Ecuador will not be harmed by a stay. The Republic of Ecuador must submit a merits brief in the underlying matter by February 2013. Without the requested discovery, I am convinced that the Republic of Ecuador will be prejudiced in its ability to present evidence to that tribunal. Finally, because the public interest lies in having discovery matters dealt with promptly and efficiently, the final factor also militates against a stay. Copic Ins. Co. v. Wells Fargo Bank, No. 09-cv-00041-WDM-BNB, 2010 WL 935646, at *1 (D. Colo. Mar. 11, 2010). Accordingly, it is
ORDERED THAT Chevron Corporation and Bjorn Bjorkman's Motion to Stay this Court's October 4, 2012 Order Pending Appellate Review [DE-90] is DENIED. Chevron shall produce any documents subject to my prior Order that have not already produced under the parties' protective order [DE-98] on or before Friday, December 7, 2012.
BY THE COURT:
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Wiley Y. Daniel
Chief United States District Judge