## Facts

- Consorcio Ecuatoriano de Telecomunicaciones S.A. (CONECEL) contracted with Jet Air Service Ecuador S.A. (JASE) for logistics services involving shipments to Ecuador, with pricing tied to shipment weight.
- The contract required disputes to be arbitrated in Ecuador before the Center for Arbitration and Conciliation of the Guayaquil Chamber of Commerce.
- JAS Forwarding (USA), Inc. (JAS USA), located in Miami, handled invoicing and logistics functions connected to JASE’s work for CONECCEL.
- CONECEL suspected JASE inflated shipment weights and overbilled, and also suspected collusion by certain CONECEL employees who approved the invoices.
- JASE initiated arbitration in Ecuador against CONECEL for alleged nonpayment under the contract.
- CONECEL sought evidence for the arbitration and for contemplated civil and private criminal actions in Ecuador against former employees allegedly involved in collusion.
- CONECEL filed an ex parte application in the Southern District of Florida under 28 U.S.C. § 1782 to subpoena documents and testimony from JAS USA.
- The district court granted the application; JASE intervened and moved to quash and to vacate the § 1782 order, arguing the discovery was not “for use” in a qualifying foreign tribunal and was overbroad and commercially sensitive.
- The district court denied the motion to quash and reconsideration; JASE appealed.

## Issues

1. Whether contemplated Ecuadorian civil and private criminal proceedings were “within reasonable contemplation” so that the requested discovery was “for use in a proceeding in a foreign or international tribunal” under 28 U.S.C. § 1782.
2. Whether the district court abused its discretion under Intel by allowing discovery allegedly involving confidential/proprietary information and undue burden.
3. Whether the Ecuadorian private arbitration qualified as a “foreign or international tribunal” for § 1782 purposes (and whether the appeal required resolving that question).

## Decision

- The Eleventh Circuit affirmed the district court’s denial of JASE’s motion to quash and motion for reconsideration.
- The court held that CONECEL satisfied § 1782’s statutory requirements because the contemplated Ecuadorian civil and private criminal actions were within reasonable contemplation and the discovery was sought for use in those proceedings.
- The court held the district court did not abuse its discretion in applying the Intel factors to permit the requested discovery.
- The court declined to definitively decide whether the Ecuadorian private arbitration, standing alone, qualified as a “tribunal,” because contemplated court proceedings independently supported § 1782 relief.

## Legal Principles

- Under 28 U.S.C. § 1782, a foreign proceeding need not be pending or imminent; it must be within reasonable contemplation and not merely speculative.
- A contemplated foreign proceeding may satisfy § 1782 when the applicant shows concrete plans, including identifiable potential parties, legal theories, and a connection between the requested evidence and the anticipated claims.
- District courts have broad discretion under Intel to grant § 1782 discovery after considering, among other factors:
  - whether the discovery target is a participant in the foreign proceeding (nonparticipants may justify greater need for § 1782 assistance),
  - whether there is reliable evidence the foreign tribunal would reject the evidence,
  - whether the request is an attempt to circumvent foreign proof-gathering limits, and
  - whether the requests are unduly intrusive or burdensome (addressable through tailoring, protective orders, and other limits under the Federal Rules).
- A party opposing § 1782 discovery bears a practical burden to present concrete, authoritative indications that the foreign tribunal would be unreceptive or that the application is improper or excessively burdensome.

## Conclusion

The Eleventh Circuit upheld § 1782 discovery from a U.S. logistics affiliate where the applicant demonstrated reasonably contemplated Ecuadorian civil and private criminal proceedings and where the district court reasonably applied Intel’s discretionary factors to reject challenges based on burden and confidentiality.


Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012)