The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
On April 15, 2011, the Court entered a scheduling order which, among other things, required service of (1) Rule 44.1 notices by May 13, 2011, (2) initial expert disclosures by July 1, 2011, and (3) rebuttal expert disclosures by August 1, 2011.
All parties filed extensive if somewhat conclusory Rule 44.1 notices by the required date. On or about July 1, 2011, plaintiff served initial expert disclosures with respect to 29 proposed expert witnesses, some as to matters of foreign law. The LAP Representatives to date apparently have served none although they at some point referred to six affidavits of experts that had been submitted in other proceedings. After waiting several weeks following the service of plaintiff's expert disclosures, however, the LAP Representatives moved for an order striking 26 of plaintiff's 29 proposed expert witnesses and limiting the scope of the proceedings or, alternatively, for an extension of time within which to designate rebuttal witnesses. DI 132, 134. Without prejudice to the balance of the motion, the Court previously extended the time for designation of defense experts in response to these 26 plaintiff's experts until August 15, 2011. DI 163. It then heard argument on August 2, 2011, following which plaintiff withdrew 10 of the 26 disputed witnesses. Thus, sixteen witnesses remain the subject of the LAP Representatives' motion.
1. The LAP Representatives argue that the 16 proposed experts who remain in dispute should be stricken principally because, in their view, (a) the only possibly relevant issue on plaintiff's case is its claim that the Ecuadorian judgment is unenforceable on the ground that the Ecuadorian system does not afford impartial tribunals or due process, and (b) the proposed testimony of those witnesses would go to other matters, most notably other bases for non-recognition or unenforceability, and therefore would be irrelevant.*fn1 In asserting that the only relevant issue is whether the Ecuadorian judgment is unenforceable on the ground that the Ecuadorian system does not afford impartial tribunals or due process, the LAP Representatives acknowledge that plaintiff has asserted several other grounds for non-recognition and unenforceability but claim that all of the other grounds asserted are insufficient. In substance, then, the LAP Representatives' motion effectively seeks partial summary judgment or judgment on the pleadings dismissing much of the plaintiff's case. Moreover, it does so on short notice and on very limited legal basis. Their memorandum of law devotes only four pages to the sufficiency of the numerous other grounds for non-recognition and unenforceability advanced by plaintiff and, in light of plaintiff's response, appears to be of at best debatable merit.*fn2
It would serve neither side, particularly in light of the importance of the matter, to reach these issues in such a context and on such a basis. Accordingly, as a matter of sound judicial administration, the Court declines to do so. While one or more of the issues that underlie the LAP Representatives' relevance arguments may prove amenable to resolution on motion, the better course is to await fuller briefing and, quite possibly, a fuller development of the record. The Court therefore declines to rule on the sufficiency of aspects of the plaintiff's claims in the context of the present motion.
2. At first blush, the fact that plaintiff, even after withdrawing 10 proposed witnesses, has designated 19 experts seems to support an extension. But the extent to which it does so is somewhat exaggerated because the LAP Representatives long have been aware that they would need expert testimony on many of subjects on which the plaintiff's witnesses propose to testify and, in some cases, of the identity and substance of the proposed testimony of those witnesses.
Foreign and International Law
Five of the 16 remaining disputed experts propose to testify to matters of Ecuadorian or international law.
It has been obvious since the outset of this action that both sides would rely on experts on matters of foreign law -- a fact confirmed on May 13, 2011 when all parties, including the LAP Representatives, served notices under Fed. R. Civ. P. 44.1. So neither the fact that plaintiff would designate a number of foreign law experts nor the subjects on which it would do so has come as any surprise to the LAP Representatives, as these have been known to them for quite some time.
The same is true of plaintiff's international law expert (Paulsson), who proposes to testify on the subject of the international law concept of due process. Failure of Ecuador to afford due process of law in the international law sense would be a mandatory ground of non-recognition. That issue was litigated, on a provisional basis, on the preliminary injunction motion. Indeed, Professor Paulsson submitted a declaration in support of that motion (No. 11 Civ. 0691 (LAK), DI 102-103), which is quite similar to his expert report served on July 1, DI 131, Ex. Q. The LAP Representatives thus have not been caught unawares.*fn3
Four of the remaining disputed experts propose to testify on the subject of whether the Ecuadorian decision was written by the judge who signed it and the Cabrera report by Cabrera or, instead, in whole or in part by the Lago Agrio Plaintiffs or others working on their behalf. The LAP Representatives have known of plaintiff's allegations in these respects for quite some time. In fact, one of the plaintiff's experts (Younger) filed a declaration in this case on May 2, 2011. No. 11 Civ. 0691, DI 300.
Five of the remaining disputed experts propose to testify, broadly speaking, to the lack of basis and evidentiary support for parts of the Ecuadorian judgment including, inter alia, the alleged lack of any evidence of a causal connection between ...