If you have an active or a pending proceeding which may benefit from discovery in the U.S., contact us at [email protected] Make sure to put "Foreign Legal Assistance" in the subject header.
While the post-Kiobel world has seen several disappointing decisions that make it more difficult for victims of human rights abuses to seek justice for corporate complicity, there are still bright spots in the U.S. courts. EarthRights International (ERI) has developed a strategy to use the U.S. Foreign Legal Assistance (FLA) statute, 28 U.S.C. § 1782, to assist public interest lawyers in other countries in obtaining information which may be useful for their proceedings against a corporation. Under this statute, “interested parties” to an action in a foreign domestic proceeding can ask a federal court to obtain documents and testimony from people or companies located in the U.S. who may have relevant information.
Corporations or individuals in the United States sometimes have information that is useful or necessary to a case in a court or tribunal outside the United States. Section 1782, a U.S. law, allows those with an interest in the case to obtain that information.
A section 1782 request is a request to a federal court in the United States. It asks the court to help a foreign court, or a participant in a foreign legal case, to obtain information which can be used in a legal case in another country. The process of obtaining information is known as “discovery.” The foreign legal case can be either ongoing or under preparation. The discovery can be in the form of testimony, documents, or physical evidence. While section 1782 assistance is often granted, the U.S. court is not required to comply with a section 1782 request. This means that even if all the legal requirements for the request are met, the judge may still reject it.
In the past, getting information through FLA requests has been done mostly by multinational corporations – in fact, more FLA cases have been filed by Chevron than by anyone else! ERI works with local lawyers throughout the world to make this tool available to them, so that victims have the same access to legal remedies as multinational corporations and other powerful actors.
ERI has filed three FLA actions so far:
ERI’s first FLA action sought documents from Chevron for a case in Nigeria involving the negative impacts of gas flaring. There, Chevron ultimately came to an agreement with the Nigerian communities regarding the documents, and the communities are pleased with the outcome. Interestingly, the FLA was actually a tactic widely used by Chevron itself to support its defense of pollution litigation in Ecuador. This may be the first case where a public interest group has used a FLA request to assist communities in obtaining information from a U.S. multinational corporation.
ERI filed a FLA action to obtain documents and testimony for an action in Tanzania against Thomson Safaris, a high-end safari company, for alleged land grabbing and violence against local Maasai communities. The court quickly ordered the discovery, which our partners will be using in the upcoming trial.
In 2014, ERI sought documents and testimony from Newmont, a U.S. mining company, for a lawsuit in Peru involving violence against protesters committed by the mining company’s hired security. ERI’s client, Elmer Campos, was shot in the back while protesting and remains paralyzed. In March 2015 a federal court in Colorado ordered Newmont to turn over evidence relating to police repression of protesters during the time Mr. Campos was injured. The order also permits ERI lawyers, on behalf of Mr. Campos, to take deposition testimony from a Newmont representative. The court's ruling will shed light on the events leading to the shooting and paralysis of Mr. Campos.
To spread the word about this potentially useful tool, ERI has created a guide which informs communities, foreign lawyers, and other organizations about the existence, availability, and benefits of this strategy. The guide gives an overview of what the statute is, how it could be helpful to foreign domestic human rights lawyers, and answers frequently asked questions. We’ve already had tremendous interest in this strategy from many partners, so we’re trying to spread the word!