Eni S.p.A. ("Eni") filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery for Use in Foreign Proceedings. (D.I. 1). The Court granted the application (D.I. 8), and Eni served subpoenas on Respondents Poplar Falls, LLC, Drumcliffe Partners I LLC, Drumcliffe Partners II LLC, Drumcliffe Partners III LLC, Drumcliffe Partners III SMA I, LLC, Drumcliffe Partners IV LLC, and Drumcliffe Partners IV SMA1, LLC (collectively, "Respondents").
Thereafter, Respondents filed a Motion to Vacate Order Permitting Discovery, to Quash or Modify Subpoenas, and/or For Protective Order. (D.I. 11). The Court granted-in-part and denied- in-part Respondents' motion. (D.I. 37).
Pending before the Court is Respondents' Motion for Reargument and/or Reconsideration, for a Protective Order, and for a Stay. (D.I. 38). Respondents' Motion is fully briefed (D.I. 39; D.I. 42) and subject to Respondents' pending Motion for Expedited Consideration as to the request for a stay (D.I. 40; D.I. 41; D.I. 46; D.I. 48). Also pending is Eni's fully briefed Motion for Sanctions for Respondents' Violation of the Court's March 19 Order. (D.I. 44; D.I. 47; D.I. 51). For the reasons discussed below, Respondents' Motion for Reargument and/or Reconsideration, for a Protective Order, and for a Stay is DENIED, Respondents' Motion for Expedited Consideration of the Motion for Stay is DENIED, and Eni's Motion for Sanctions is DENIED.
Even if the evidence Eni seeks would no longer be "for use" in the Italian proceedings, the evidence would still be for use in the ICSID arbitration. Respondents assert that in Servotronics the Supreme Court "is likely to address what constitutes a private international arbitration for the purposes of § 1782, and it may well preclude discovery for use in ICSID arbitrations." (D.I. 39 at 4). The question presented in the petition for certiorari was: "Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use `in a foreign or international tribunal' encompasses private commercial arbitral tribunals. . . or excludes such tribunals without expressing an exclusionary intent. . . . " Petition for a Writ of Certiorari, Servotronics, 141 S. Ct. 1684 (No. 20-794). It is not apparent that the Supreme Court's decision in Servotronics will affect whether an ICSID arbitration constitutes a foreign proceeding under § 1782, particularly when district courts "have regularly found that arbitrations conducted pursuant to Bilateral Investment Treaties, and specifically by the ICSID, qualify as international tribunals under § 1782 and are not private arbitrations." In re Eni, 2021 WL 1063390, at *3 (collecting district court cases). Because the grant of certiorari in Servotronics, on a tangentially related legal issue, does not constitute a change of law, the Court declines to reconsider its finding that Eni's discovery will be for use in a proceeding in a foreign tribunal.
Eni International B.V., Eni Oil Holdings B.V. and Nigerian Agip Exploration Limited v. Federal Republic of Nigeria (ICSID Case No. ARB/20/41)