United States District Court, District of Columbia
G. MICHAEL HARVEY, Magistrate Judge.
On March 3, 2015, this case was referred to the undersigned for purposes of management of discovery and resolution of any discovery-related disputes. Currently ripe for resolution is the defendants' motion to strike the plaintiff's January 14, 2014, notice of deposition issued pursuant to Rule 30(b)(6). For the reasons stated below, the defendants' motion will be denied.
A. Procedural History
On May 25, 1999, Continental Transfert Technique Limited, a Nigerian corporation with its principal place of business in Lagos, Nigeria ("plaintiff" or "Continental"), entered into a contract with the Federal Government of Nigeria, the Attorney General of the Federation, and Nigeria's Minister of the Interior (collectively, "defendants" or "Nigeria"), to create a computerized residence permit and alien card system. See Amended Complaint [Dkt. 31] at ¶¶ 7, 8, 11. Disputes subsequently arose between the parties concerning performance of the contract. On November 20, 2007, Continental initiated an arbitration in London, as provided by the terms of the contract, claiming that the defendants had failed to adequately perform. Id. at ¶ 17. On August 14, 2008, the arbiters awarded Continental approximately USD $252 million in damages, USD $247, 500 in costs, and USD $238, 007 for the cost of arbitration. Id. at ¶¶ 23-27. On November 25, 2008, Continental brought suit in this court, pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 201-208, which codifies the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to enforce that 2008 arbitral award. Id. at ¶ 1. Pursuant to the District of Columbia's Uniform Foreign-Money Judgments Recognition Act, D.C. Code §§ 15-1381 et seq., Continental also sought to enforce a 2009 judgment by the United Kingdom's High Court of Justice that confirmed the arbitral award as final and enforceable. Id. at ¶ 2.
In an Opinion issued on March 23, 2010, Judge Friedman rejected Nigeria's assertion that it was not amenable to suit in this matter because it had not waived sovereign immunity and concluded that jurisdiction was proper under the Foreign Sovereign Immunities Act (the "FSIA" or "the Act"), 28 U.S.C. §§ 1330, 1602 et seq. See Opinion (March 23, 2010) [Dkt. 38] at 9. In ruling that Nigeria may not invoke the defense of sovereign immunity to prevent enforcement of the arbitral award, the Court relied on section 1605(a)(6) of the FSIA. Id. That section provides that a foreign state shall be subject to the jurisdiction of the courts of the United States in a case "in which the action is brought... to confirm an award made pursuant to... an agreement to arbitrate, if... the agreement or award is... governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards." 28 U.S.C. § 1605(a)(6).
Thereafter, in an Amended Order and Judgment issued on March 26, 2013, Judge Friedman: (1) confirmed the August 14, 2008, arbitration award, (2) held that the arbitration award was enforceable under the D.C. Code, (3) converted the arbitral award into dollars, (4) awarded Continental post-judgment interest, and (5) entered judgment for Continental in the amount of USD $276, 111, 640.96. See Amended Order and Judgment (March 26, 2013) [Dkt. 61] at 1-2. On April 25, 2013, defendants appealed Judge Friedman's final order. See Notice of Appeal [Dkt. 64].
During the pendency of the appeal, Continental served the Government of Nigeria with a notice of deposition pursuant to Rule 30(b)(6) and Rule 69(a)(2) of the Federal Rules of Civil Procedure seeking to discover information regarding Nigerian assets that could be used to satisfy the judgment. See Notice of Rule 30(b)(6) Deposition [Dkt. 70-2]. It is that notice of deposition that is the subject of the present dispute between the parties. On March 10, 2014, Nigeria filed a motion to strike Continental's deposition notice, and for a protective order against any further discovery in this case pending the outcome of the appeal. See Memorandum in Support of Motion to Strike [Dkt. 70] at 1.
On March 13, 2014, the case was referred to now-retired Magistrate Judge John M.
Facciola for management of discovery, including the adjudication of Nigeria's motion to strike. See Referral Order (March 13, 2014) [Dkt. 71]. On May 21, 2014, Magistrate Judge Facciola concluded that he lacked jurisdiction over the motion because the case was on appeal. See Memorandum Opinion (May 21, 2014) [Dkt. 76] at 3. Both parties subsequently filed objections to the Magistrate Judge's ruling.
On January 16, 2015, the Court of Appeals affirmed Judge Friedman's judgment and upheld his post-judgment rulings. See generally Judgment (March 6, 2015) [Dkt. 90]. Importantly for resolution of the pending dispute, the D.C. Circuit agreed with Judge Friedman's March 23, 2010, Opinion rejecting Nigeria's invocation of sovereign immunity, and affirmed that section 1605(a)(6) of the FSIA grants jurisdiction over Continental's claim seeking to confirm its arbitral award under the Federal Arbitration Act. Id. at 2 n.2.
Shortly thereafter, on January 27, 2015, Judge Friedman ruled on the parties' objections to Magistrate Judge Facciola's ruling, holding that Nigeria's request for a protective order from all post-judgment discovery pending its appeal was rendered moot by the Court of Appeals' January 16, 2015, decision, but that its motion to strike Continental's deposition notice remained pending. See Memorandum Opinion and Order (January 27, 2015) [Dkt. 84] at 3. Judge Friedman ordered the parties to file supplemental briefs addressing Nigeria's arguments, raised for the first time in its reply: (1) whether a foreign sovereign is the proper subject of a Rule 30(b)(6) notice of deposition, and (2) whether Nigeria had waived this argument by failing to raise it in its initial brief in support of its motion to strike. Id. at 4-5. On March 3, 2015, Judge Friedman referred the motion to strike, and any future discovery disputes, to this Court for adjudication.
B. The Parties' Arguments
1. Nigeria's Position
In its original motion to strike Continental's deposition notice, Nigeria makes two principle arguments. First, it contends that because it is "immune from arrest, execution and attachment" under the FSIA, it is not properly the subject of a Rule 30(b)(6) notice. See Memorandum of Law in Support of Motion to Strike [Dkt. 70-1] at 3. As Nigeria views it, because a Rule 30(b)(6) notice requires the appearance of a representative of the Nigerian government to answer questions, responding to the notice qualifies as an "arrest." Id. at 3-4. Nigeria further objects to Continental's deposition notice because it maintains that the deposition is "clearly aimed at Execution, " and because it claims it has not waived sovereign immunity with respect to execution on its property. Id. Second, Nigeria contends that, even if Continental were entitled to some discovery under Rule 30(b)(6), the deposition notice should be quashed as overly broad under Rule 26(c)(1)(A) because it "does not identify any specific property or assets targeted for execution." Id. at 4. Nigeria raises a third argument in its reply and supplemental briefs, arguing that, as a foreign sovereign, it is not properly subject to Continental's deposition notice for two further reasons: (1) the language of Rule 30(b)(6) does not include foreign sovereigns in the class of entities to whom such a deposition notice may be addressed; and (2) any deponent whom Nigeria may identify as having knowledge ...