ORDER DENYING NEXTERA ENEGY RESOURCE'S MOTION TO QUASH SUBPOENA DUCES TCUM AND DEPOSITION SUBPONAS
EDWIN G. TORRES, United States Magistrate Judge.
This matter is before the Court on NextEra Energy Resources' ("NextEra") Motion to Quash Subpoena Duces Tecum and Deposition Subpoenas [D.E. 9] filed April 6, 2012. NextEra additionally filed a Supplement to Motion to Quash on May 1, 2012 [D.E. 25]. Mesa Power Group, LLC ("Mesa Power") responded in opposition on May 21, 2012 [D.E. 28]. NextEra then filed a reply to Mesa Power's Opposition to Quash Subpoena Duces Tecum and Deposition Subpoenas. [D.E. 30]. Finally, Mesa Power filed a Notice of Supplemental Authority on June 6, 2012 [D.E. 32], to which NextEra responded. Both parties also appeared before the Court on June 19, 2012 for a Hearing on NextEra's Motion to Quash. Upon review of the motions, responses, replies, the record, and the arguments made by counsel at the hearing, we conclude that NextEra's Motion to Quash Subpoena Duces Tecum and Deposition Subpoenas should be denied.
A. NAFTA Arbitration
This matter arises from Mesa Power's Ex Parte Application for Judicial Assistance in Obtaining Evidence for Use in a Foreign and International Proceeding pursuant to 28 U.S.C. § 1782. Mesa Power sought assistance in a pending arbitration under the North American Free Trade Agreement ("NAFTA") involving Mesa Power and the Government of Canada [D.E. 1]. According to the Ex Parte Application, in July 2011, Mesa Power was awaiting the response to six applications that had been filed under the Ontario FIT program. The Ontario FIT Program guarantees electrical grid access to renewable energy producers through long-term fixed price contracts with the Ontario Power Authority ("OPA").
However, as alleged by Mesa Power, on July 3, 2011 an unexpected change in the rules for awarding FIT Program contracts effectively prevented Mesa Power from obtaining any contracts with the OPA. Due to the ability to change interconnect points, NextEra and Boulevard were awarded FIT contracts while Mesa Power was allegedly shut out of the market. Mesa Power claims that the Government of Ontario unfairly usurped Mesa Power's ranking, essentially confirming a course of conduct of arbitrariness, discrimination,
Since Canada is responsible for Ontario's observance of NAFTA pursuant to NAFTA Article 105, Mesa Power proceeded to file a Notice of Intent under the United Nations Commission of Internal Trade Law ("UNCITRAL") with the Government of Canada to establish an international tribunal to address violations of section A of Chapter 11 of NAFTA by Canada. On October 4, 2011, Mesa Power filed a Notice of Arbitration in Ottawa, Canada, claiming that Canada imposed sudden and discriminatory changes to the established scheme for renewable energy. In the NAFTA Arbitration proceedings, Mesa Power is seeking: (a) a declaration that the Canadian Government has breached NAFTA; (b) a declaration that such a breach has caused harm to Mesa Power; and (c) an award of damages for the value of Mesa Power's investments; appropriate compound interest on this amount; and an amount for the costs and disbursements for professional and expert advisors and the costs of arbitration.
B. Miami Proceedings
Mesa Power then filed an Ex Parte Application, accompanied by a declaration, a memorandum of law, correspondence regarding the arbitration, and a notice of arbitration, seeking to conduct discovery pursuant to 28 U.S.C. § 1782 [D.E. 1]. In preparation for the NAFTA Arbitration, the Application requested documents within NextEra's possession and control relating to the Ontario FIT Program, including communications with the Government of Ontario, lobbyist groups in Canada, and other third parties that were involved in NextEra's bid process. Mesa Power also sought to depose seven senior executive members of NextEra. On December 6, 2011, the Ex Parte Application for Judicial Assistance was granted [D.E. 4]. NextEra responded shortly thereafter by filing a Motion to Quash Subpoena and Deposition Subpoenas [D.E. 9], which motion was referred for disposition.
NextEra argued in its Motion to Quash that the discovery sought was contrary to the applicable discretionary factors established in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 255, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). Specifically, NextEra claimed that Mesa Power did not prove that NAFTA would be receptive to the discovery sought and as such it was unclear whether this was an attempt to circumvent the tribunals' proof-gathering mechanisms. In addition, NextEra asserted that the request sought company trade secrets and competitive information while imposing an undue burden. As for the deposition subpoenas, NextEra claimed that they should be quashed since the tribunal had not yet decided if Mesa was entitled to discovery, and, if not quashed, they should alternatively be restricted to less intrusive means. NextEra considered the request to depose the most senior executives inappropriate where other agents of the corporation could be deposed.
Mesa Power reiterated in its Opposition to NextEra's Motion to Quash that, contrary to NextEra's assertions, the Intel discretionary factors weighed in favor of denying the Motion to Quash. Mesa Power contended that the discoverability and admissibility of evidence in the foreign proceeding does not bar a district court from ordering discovery. Even more so, it is not a factor to be considered unless NextEra had authoritative proof that such evidence would be rejected. Mesa Power further responded to NextEra's assertions that the NAFTA Arbitration proceeding was not even pending by stating that the proceeding had in fact been recognized and, even if it had not been pending, Intel
Mesa Power additionally responded to the claim that the requests were unduly intrusive or burdensome, and, even if they were, NextEra waived a right to objections since it failed to specify how the discovery requests were burdensome. NextEra's failure to specify their concerns allegedly extended to their assertion that the requested documents were confidential. Finally, Mesa Power contended that the depositions were appropriate but offered to substitute the seven executives subpoenaed for the deposition of a person most knowledgeable as identified by NextEra.
A. Assistance to Foreign and International Tribunals to Litigants Before Such Tribunals Pursuant to 28 U.S.C. § 1782
The applicable statute relevant to this dispute, 28 U.S.C. § 1782(a), provides:
Since 1948, "Congress [has] substantially broadened the scope of assistance federal courts could provide for foreign proceedings," pursuant to § 1782. Intel, 542 U.S. at 247-48. 124 S.Ct. 2466. "The history of Section 1782 reveals Congress' wish to strengthen the power of district courts to respond to requests for international assistance." Lo Ka Chun v. Lo To, 858 F.2d 1564, 1565 (11th Cir.1988). As such, Congress has intentionally granted the district courts broad discretion in granting judicial assistance under § 1782. In re Application of Consorcio Ecuatoriano de Telecomunicaciones S.A., 685 F.3d 987, 1001 (11th Cir.2012); see In re Clerici, 481 F.3d 1324, 1331 (11th Cir.2007); United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir.2001).
A district court has authority to grant an application for judicial assistance pursuant to § 1782 if the following statutory
Once the statutory requirements have been satisfied, the district court should consider the following factors in deciding whether to exercise the discretion granted under § 1782: (1) whether "the person from whom discovery sought is a participant in the foreign proceeding," because "the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant"; (2) "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federalcourt judicial assistance"; (3) "whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States"; and (4) whether the request is otherwise "unduly intrusive or burdensome." In re Clerici, 481 F.3d at 1334 (quoting Intel, 542 U.S. at 264-65, 124 S.Ct. 2466).
Section 1782(a) further "directs judges to provide discovery assistance pursuant to the Federal Rules of Civil Procedure," Weber v. Finker, 554 F.3d 1379, 1383 (11th Cir.2009), so long as the order does not prescribe the practice and procedure of the foreign country or the international tribunal. Based upon these factors, the district court can deny, modify or order discovery as requested. See Intel, 542 U.S. at 265-65, 124 S.Ct. 2466.
B. Section 1782(a) Statutory Requirements
NextEra does not dispute that the threshold requirements authorizing judicial assistance under § 1782(a) have been satisfied. First, as a party to the dispute, Mesa Power plainly is an "interested person." 28 U.S.C. § 1782(a). Second, Mesa Power's application seeks evidence in the form of document production and deposition testimony.
As to the third factor, Mesa Power requested evidence for use in NAFTA arbitration, which functionally qualifies as a "foreign or international tribunal" under section 1782. See In re Consorcio, 685 F.3d at 995 (holding an arbitral panel in Ecuador fell within section 1782's scope); In re Application of Winning (HK) Shipping Co. Ltd., 2010 WL 1796579, at *6-7 (S.D.Fla.2010) (holding an arbitration tribunal fell within the purview of section 1782); see also Comision Ejecutiva, Hidroelectrica del Rio Lempa v. Nejapa Power Co., LLC, 2008 WL 4809035, at *1 (D.Del. Oct. 14, 2008) (noting that Intel indicates "that Section 1782 does indeed apply to private foreign arbitrations"). The Eleventh Circuit delineated a "broad functional construction of the term `tribunal' [based on the] substantial guidance" of the Supreme Court in Intel. In re Consorcio Ecuatoriano, 685 F.3d at 995 (citing Intel, 542 U.S. at 255 n. 9, 257-58, 124 S.Ct. 2466).
Fourth, Mesa Power seeks discovery from NextEra, which is headquartered in Juno Beach, FL with a registered agent in Miami. Thus, NextEra resides in and is "found in the district of the district court ruling on the application for assistance." 28 U.S.C. § 1782(a). Therefore, the Court is undoubtedly authorized by statute to provide § 1782 assistance.
C. Application of the Discretionary Factors
Careful review of the Intel factors strongly favors the Court granting Mesa Power's application for judicial assistance.
First, there is no dispute that NextEra is not a participant to the pending proceeding in Canada. The Supreme Court held that since "nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach ..., their evidence, available in the United States, may be unobtainable absent § 1782(a) aid." Intel, 542 U.S. at 264, 124 S.Ct. 2466. As such, the first factor — whether the person from whom discovery sought is a participant — weighs in favor of granting discovery. Admittedly, some of the requested discovery might be available to the foreign tribunal through Canada, as is evident by the discovery already produced. But it is not certain that all of NextEra's relevant documents would be accessible without judicial assistance in this jurisdiction. Cf. In re Microsoft Corp., 428 F.Supp.2d 188, 194 (S.D.N.Y. 2006) (finding section 1782 assistance unnecessary and improper where the discovery requested was already in the foreign tribunal's possession).
As to the second discretionary factor — "the nature of the foreign tribunal, the character of the proceedings underway abroad" — NextEra argues that the Court should quash the subpoena, at least until the newly filed arbitration advances to the discovery stage as those proceedings are still at a premature stage. We disagree for the most part. See, e.g., In re Clerici, 481 F.3d at 1334. Section 1782 may authorize and encourage judicial assistance even if the foreign proceeding has not commenced or advanced because " § 1782 is not limited to proceedings that are pending." Id. at 1333 n. 12 (citing Intel, 542 U.S. at 248-49, 124 S.Ct. 2466). In fact, the proceedings need "only ... be within reasonable contemplation." Intel, 542 U.S. at 259, 124 S.Ct. 2466. Under this standard, the proceedings have sufficiently matured as NextEra has evidently been contemplating this NAFTA arbitration since, at the latest, before October 4, 2011, Canada has already been notified of the proceedings, filing and processing fees have been paid, and the process of choosing the arbitration panel has begun.
Moreover, contrary to NextEra's argument that discovery should be delayed because
Finally, the proceedings have advanced beyond the nascent stages. Mediation has been purportedly completed and, as of the date of the hearing, the selection of the arbitrator was in process. Most relevant, Mesa Power notified the Court that the arbitration should in fact begin in October. In any event, as mentioned before and explained by Intel, the proceedings are not required to have reached this point before relief under the statute may be sought. See Intel, 542 U.S. at 259, 124 S.Ct. 2466.
NextEra also contends that fairness and efficiency principles dictate that Mesa Power's failure to prove the receptivity of the foreign tribunal weighs against judicial assistance. NextEra later disclaims in its Reply [D.E. 30] that it is actually presenting an exhaustion argument or an admissibility argument. Nevertheless, "[t]o the extent that [NextEra's] argument may be read as suggesting that an interested party must meet a foreign discovery requirement, prior to being entitled to assistance under section 1782, that argument was soundly rejected by the Supreme Court." In re Application of Winning, 2010 WL 1796579 at *10, n. 7.
As to the third discretionary factor, we reject NextEra's broad contention that the discovery requests are overly burdensome. District courts must "weigh the section 1782 applicant's asserted need for the evidence against the nature of the foreign proceeding and concerns of undue burden or intrusiveness ... in determining whether to grant a section 1782 application." In re Consorcio Ecuatoriano, 685 F.3d at 998 n. 7. Any requests that are "unduly intrusive or burdensome ... may be rejected or trimmed." 542 U.S. at 265, 124 S.Ct. 2466. For instance, "[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege." 28 U.S.C. § 1782(a).
The Court finds, contrary to NextEra's assertions, that most of Mesa Power's discovery requests materially comply with the requirement that the discovery be "relevant to the foreign proceeding." In re Dr. Braga, 789 F.Supp.2d 1294, 1304 (S.D.Fla. 2011); compare In re Consorcio Ecuatoriano, 685 F.3d at 999 (holding that the discovery "relating to ... the rates charged ... to CONOCEL or the procedure or methodology for applying the rates to be charged ... [are] plainly relevant" to the foreign proceedings as they formed the basis of CONOCEL's defense), with Kang v. Noro-Moseley Partners, 246 Fed.Appx. 662, 664 (11th Cir.2007) (affirming order quashing subpoena due to "irrelevance of the requested discovery to the nature of the foreign proceedings"). The communications between Canada and NextEra regarding the Power Purchase Agreements under the Feed In Tariff program go to the central issue in the underlying arbitration: the alleged difference in treatment between Mesa Power and NextEra, the reasons for NextEra being afforded better treatment, and the criteria that was applied by Canada to NextEra [D.E. 28, Opp. at 4].
We acknowledge, however, that NextEra correctly questions the relevance and breadth of NextEra's internal documents and of the communications with third parties other than Canada. E.g., Discovery Requests #7 and 8. Those document requests appear to be unduly intrusive and unnecessary, at least at this early stage of the process. But in the main the document requests seek communications between NextEra and Canada, which documents are highly relevant to the issues raised in the foreign arbitration.
Additionally, although Mesa Power has received some documents through the Ontario Access Information Act, it is uncertain that all relevant information could be accessed through this avenue, especially since NextEra is a nonparticipant in the foreign proceeding and may be "outside the foreign tribunal's jurisdictional reach." Intel, 542 U.S. at 244, 124 S.Ct. 2466. The documents in NextEra's possession and control still carry sufficient relevance and evidentiary value. Accordingly, contrary to NextEra's position, Mesa Power has shown that the need to obtain this discovery
And, further, NextEra has failed to show, as the party moving to quash the subpoena, that the subpoena as a whole subjected it to an undue burden. Although the Federal Rules of Civil Procedure permits a Court to quash or modify a subpoena if it "subjects a person to undue burden," Fed.R.Civ.P. 45(c)(3)(A)(iv), the party moving to quash the subpoena "must show the subpoena subjects him to undue burden." Int'l Ass'n of Machinists and Aerospace Workers v. P & B Transp., 2007 WL 4145974, at *2 (M.D.Fla.2007) (denying motion to quash subpoena because the producing party "failed to provide the Court with anything more than conclusory statements ... such as `[t]he [s]ubpoena is... overburdening'"); see also Fadalla v. Life Automative Products, Inc., 258 F.R.D. 501, 504 (M.D.Fla.2007) (citing Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir.2004)).
Rather than meeting this burden, Next Era took the "all-or-nothing discovery challenge" approach. In re Consorcio Ecuatoriano, 685 F.3d at 1000. Like the unsuccessful challenger in that case, NextEra may have been better served by simply seeking to "limit discovery[,] identifying the terms of the written request that [were] overly broad[,] or asserting how the scope of the request should be narrowed," in accordance with Eleventh Circuit guidance. Id. at 1000 (finding that the district court properly exercised its discretion in providing judicial assistance under 1782 since the objecting party "failed to identify which particular discovery requests [were]... unduly burdensome or to provide any specific evidence to support its blanket claim that [they] should be exempted from having to comply with any and all discovery obligations due to overarching concerns about confidentiality"); accord Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 597-98 (7th Cir.2011) (noting that the "district court's denial of any discovery was all the more unreasonable because [the producing party] had refused to meet with [opposing counsel] to negotiate a reduction in the amount of discovery sought and ... refuse[d] to present any evidence of the burdens that granting [the] discovery request would impose.").
Finally, no undue burden exists because the discovery requests being compelled through this Order are sufficiently tailored. The discovery requested here is narrower than the discovery requested in In re Consorcio Ecuatoriano as Mesa Power is requesting documents that directly relate to the foreign proceeding and that date from within a reasonable time period. Compare In re Consorcio Ecuatoriano, 685 F.3d at 999 (holding that discovery was appropriately tailored as it "limit[ed] the request to information" within a six year time period relating to one specific contract and the deposition of a person most knowledgeable), with Advanced Micro Devices, Inc. v. Intel Corp., 2004 WL 2282320, 2004 U.S. Dist. LEXIS 21437 (N.D.Cal. Oct. 4, 2004) (on remand from the Supreme Court, the district court found the 1782 application to be "unduly intrusive and burdensome [since there was] ... no attempt to tailor its application to the subject matter of the EC Complaint").
The record shows that NextEra maintains project files together such that NextEra could efficiently access the requested communications relating to the specified projects from 2009 to 2011. It is difficult to fathom how such a complex application process would be organized otherwise. At the same time, because the Court is cognizant that NextEra is a non-participant of the underlying proceedings, we are hesitant to place any unnecessary burden on
With respect to the final discretionary factor to consider, NextEra failed to provide the Court with a substantial basis upon which to protect alleged trade secrets or commercial information. The Federal Rules of Civil Procedure permit the Court to quash a subpoena if it requires "disclosing a trade secret or other confidential research, development, or commercial information." Fed. R. Civ. Pro. 45(c)(3)(B)(i). A traditional protective order that the parties can agree upon will adequately address this issue and protect NextEra's internal confidential documents from being turned over to any third parties or for any issues other than this litigation.
For the foregoing reasons, NextEra's Motion to Quash [D.E. 9] is