discovery

Department of Commerce v. New York

Issues

Can a district court order the collection of evidence outside the administrative record—including compelling a high-ranking government official’s deposition—without any evidence showing that the decisionmaker did not believe the objective reasons behind the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis?

Was the Department of Commerce’s decision to add a citizenship question to the 2020 census unlawful—either under the Administrative Procedure Act or the Enumeration Clause of the Constitution?

In addition to determining whether the Census Bureau’s addition of a citizenship question to the 2020 Census was lawful, the Court must also determine whether the Court can order discovery outside the administrative record, including a deposition of the Secretary of Commerce. The Department of Commerce argues that the deposition substantially intrudes on the Secretary’s job because there is no showing of bad faith nor extraordinary circumstances which warrant the additional discovery. The Department of Commerce also posit that the addition of the citizenship question was not arbitrary and capricious, was in accordance with law, and did not violate the Enumeration Clause of the Constitution. The Department of Commerce finally contends that adding a citizenship question would provide more accurate citizenship information and help enforce the Voting Rights Act. However, the State of New York and the New York Immigration Coalition assert that the Secretary exhibited bad faith by submitting an incomplete record and they contend that his reasons for doing so are incomplete and pretextual. They argue that because he is uniquely and personally involved in adding the citizenship question, extraordinary circumstances warrant his deposition. The State of New York and the New York Immigration Coalition counter that adding a citizenship question would lower response rates from noncitizens and affect apportionment of representatives.  

Questions as Framed for the Court by the Parties

(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;

(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking executive branch officials —without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and

(3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

The Constitution requires that the United States population be counted every ten years. New York v. United States Department of Commerce (“N.Y. v. Department”), at 2.

Written by

Edited by

Submit for publication
0

Goodyear Tire & Rubber Co. v. Haeger

Issues

Should there be a direct causal link between a litigant’s discovery misconduct and a compensatory sanction that a court imposes in response to such misconduct pursuant to the court’s inherent authority?

Respondents Leroy Haeger, et. al (“the Haegers”) were injured during a vehicle accident as a result of a failed tire, which was manufactured by Petitioner Goodyear Tire & Rubber Company (“Goodyear”). After the case settled, the Haegers discovered that Goodyear did not disclose several tests that it performed on the tire; the Haegers then moved the court to sanction Goodyear for its discovery misconduct. The district court relied on its inherent powers to sanction Goodyear and its counsel. Goodyear argues that the Supreme Court should limit inherent authority sanctions to those fees and costs directly caused by the claimed misconduct. The Haegers argue that although compensatory damages must be causally linked to the sanctioned misconduct, when the sanctionable misconduct is not limited to a single, discrete instance, but instead is so pervasive as to undermine or affect the whole litigation, an award of the entire amount of attorney’s fees and costs incurred by the party who is victim to the misconduct may be appropriate to compensate that party. The outcome of this case could potentially affect the scope of district courts’ inherent power to impose sanctions for discovery misconduct, when the courts cannot rely on the Rules or other statutory authority. The case will show whether a more exacting causation standard or a more discretionary standard should be used by the district court to impose sanctions under its inherent powers. 

Questions as Framed for the Court by the Parties

Is a federal court required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process?

BACKGROUND

In June 2003, Leroy Haeger, et al. (“the Haegers”) suffered serious injuries when, as they were driving on a highway, a Goodyear G159 tire on their vehicle failed, causing the vehicle to swerve off the road and overturn. Haeger v. Goodyear Tire & Rubber Co., 813 F.3d 1233, 1238 (9th Cir. 2016). The Haegers sued Goodyear Tire & Rubber Company (“Goodyear”) in Arizona state court, but Goodyear removed the case to federal court.

Written by

Edited by

Submit for publication
0

The Republic of Argentina v. NML Capital, Ltd.

Issues

Can a court order post-judgment discovery that would help enforce a judgment against a sovereign nation with respect to all assets, regardless of use or location, or is such discovery limited to assets located in the United States that fall under the Foreign Sovereign Immunities Act of 1976?

In December 2001, Argentina defaulted on its external debt payments. As a result, several bondholders agreed to debt restructurings with the country. However, NML Capital opted to file eleven different actions against Argentina in the Southern District of New York, with the district court ruling for NML in each action. Argentina has not satisfied any of the judgments, forcing NML to pursue Argentinian property located in the United States and abroad to try to attach and execute that property. NML subpoenaed two banks that are not parties to the litigation, seeking information about assets related to Argentina held at those banks. After the banks filed motions against the subpoenas, the district court ordered compliance with them and the Second Circuit affirmed, holding that the court directed the subpoenas at third-party banks seeking only discovery, not attachment or execution, and thus did not impinge on Argentina’s sovereignty. Argentina claims that these subpoenas violate long-standing protections of sovereign immunity. NML counters that the court ordered the subpoenas against non-litigating banks that fall outside sovereign immunity protection. The Supreme Court will now consider whether a court can compel discovery of all assets, regardless of location, of a sovereign state in a post-judgment proceeding that would help enforce the judgment against that state. This decision could affect diplomatic relations between the United States and countries that give reciprocal treatment of judicial decisions.

Questions as Framed for the Court by the Parties

Whether post-judgment discovery in aid of enforcing a judgment against a foreign state can be ordered with respect to all assets of a foreign state regardless of their location or use, as held in the Second Circuit, or is limited to assets located in the United States that are potentially subject to execution under the FSIA, as held by the Seventh, Fifth, and Ninth Circuits.

top

Facts

In December 2001, the Republic of Argentina defaulted on its external debt payments. See EM Ltd. v. Republic of Argentina, 695 F.3d 201, 203 (2nd Cir.

Written by

Edited by

Additional Resources

top

Submit for publication
0

ZF Automotive US, Inc. v. Luxshare, Ltd

Issues

Does 28 U.S.C. § 1782, which authorizes federal district courts to order discovery “for use in a foreign or international tribunal,” apply to foreign or international private commercial arbitral tribunals?

This case asks the Supreme Court to decide whether a private commercial arbitral tribunal is a “foreign or international tribunal” for purposes of 28 U.S.C. § 1782, a federal law that governs international judicial assistance. International judicial assistance refers to aid provided by one sovereign government to another in judicial proceedings. In ZF Automotive US, Inc. v. Luxshare, Ltd, Petitioner ZF Automotive US, Inc. contends that, based on the plain meaning and legislative history of § 1782, it does not apply to private commercial arbitral tribunals located in foreign nations. Respondent Luxshare, Ltd. counters that the dictionary definitions and legal use of the terms “foreign” and “tribunal” show that the statute does apply to private commercial arbitration. In AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, Petitioner AlixPartners, LLC argues that its arbitral panel does not qualify under § 1782 simply due to the international nature of the parties or the dispute because that does not turn the panel itself into an “international tribunal.” Respondent Fund for Protection of Investors’ Rights in Foreign States counters that the arbitral panel does constitute an international tribunal because it is resolving a dispute over whether one country violated its obligations under a treaty. These cases implicate the fair and efficient resolution of arbitral disputes, party autonomy, and international comity.

Questions as Framed for the Court by the Parties

ZF Automotive US, Inc. v. Luxshare, Ltd.

Whether 28 U.S.C. § 1782, which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the 2nd, 5th and 7th Circuits have held.

AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States

Whether the phrase “international tribunal” in 28 U.S.C. § 1782 excludes an international arbitral tribunal constituted pursuant to a treaty signed by two sovereign States and charged with the authority to adjudicate with finality whether one of the two sovereigns breached its obligations under the treaty.

ZF Automotive US, Inc. v. Luxshare, Ltd.

Acknowledgments

The authors would like to thank Professor Maggie Gardner for her guidance and insights into this case.

Additional Resources

Submit for publication
0
Subscribe to discovery