## Facts

- La Comision Ejecutiva Hidroelectrica del Rio Lempa (CEL), a Salvadoran state-owned entity, sought discovery from El Paso Corp. for use in a private commercial arbitration against Nejapa Power Company, L.L.C., seated in Geneva, Switzerland.
- CEL filed an ex parte application under 28 U.S.C. § 1782 in the Southern District of Texas requesting subpoenas for documents and deposition testimony from El Paso and a non-party individual, Robert Hart.
- The district court initially granted the application (July 8, 2008) and authorized the subpoenas.
- El Paso and Hart moved to set aside the discovery order, arguing that § 1782 does not authorize discovery for private foreign arbitration under controlling Fifth Circuit law.
- CEL argued that Intel Corp. v. Advanced Micro Devices, Inc. supported treating the arbitral panel as a “foreign or international tribunal.”
- CEL later moved to compel compliance with the subpoenas and sought expedited consideration.

## Issues

1. Whether 28 U.S.C. § 1782 authorizes U.S. discovery for use in a private foreign arbitration.
2. Whether the court could grant relief from its earlier § 1782 order under Federal Rule of Civil Procedure 60 after concluding it misapplied controlling circuit precedent.

## Decision

- The court granted El Paso’s motion for reconsideration and granted Hart’s motion for protective relief.
- The court denied CEL’s motion to compel compliance with the subpoenas.
- The court granted CEL’s motion for expedited consideration only to expedite the ruling.
- The court vacated the earlier order authorizing § 1782 subpoenas, concluding it lacked statutory authority to permit the discovery.

## Legal Principles

- In the Fifth Circuit, binding precedent holds that a private commercial arbitral tribunal is not a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782.
- A district court must follow controlling circuit authority unless it is clearly overruled by the circuit sitting en banc or by the Supreme Court; a Supreme Court decision that does not directly address the precise question does not displace binding circuit precedent.
- A post-order request labeled as “reconsideration” may be treated as a Rule 60 motion when filed outside the time limits applicable to Rule 59(e).
- Rule 60 relief may be granted to correct an order entered in error where the court lacked authority under the governing law; once lack of statutory authority is found, ancillary objections to subpoenas become moot.

## Conclusion

The court set aside its earlier § 1782 discovery authorization because, under controlling Fifth Circuit precedent, § 1782 does not permit discovery in aid of private foreign arbitration, and Rule 60 allowed correction of the court’s mistaken application of the statute.


La Comision Ejecutiva Hidroelectica del Rio Lempa v. El Paso Corp., 617 F. Supp. 2d 481 (S.D. Tex. 2008)