On January 24, 2014, United States District Judge Richard M. Berman found the Republic of Iraq, the Ministry of Industry of the Republic of Iraq, and the attorneys for the Republic and the Ministry in contempt of court for failure to comply with a discovery order dated August 29, 2012.  Servaas v. Republic of Iraq, Case No. 09 Civ. 1862(RMB), 2014 WL 279507 (S.D.N.Y. Jan. 24, 2014).  The court held that the “sanction imposed upon Iraq is $2,000 per day effective Friday, January 24, 2014, and continuing for each day that Iraq continues to fail to comply with the Discovery Order.”  Id. at *5.  The sanction imposed upon the sovereign defendants’ attorneys requires the payment of all reasonable attorneys’ fees and costs associated with the plaintiff’s pursuit of post-judgment discovery.  Id.  In an order dated February 7, 2014, the court found that the attorneys’ fees/cost amount was $70,422.13.  Docket No. 146.

Servaas is not the first case in which substantial sanctions have been imposed for discovery violations in FSIA cases.  For example, in FG Hemisphere Associates, LLC v. Democratic Republic of Congo, 637 F.3d 373 (D.C. Cir. 2011), the D.C. Circuit affirmed a finding of contempt of court against a foreign sovereign that failed to comply with a discovery order.  The court upheld monetary sanctions of up to $80,000 per week until the foreign sovereign complied with outstanding discovery requests.  Id. at 376.

I do not intend to examine here whether or not monetary contempt sanctions are permissible under the FSIA.  While the FSIA itself is silent on the issue, the FSIA’s legislative history states that “appropriate remedies would be available under Rule 37, F.R. Civ. P., for an unjustifiable failure to make discovery.”  H.R. Rep. 94-1487, at 23 (1976).  The D.C. Circuit strongly rejected the argument that monetary contempt sanctions could not be imposed under the FSIA.  See FG Hemisphere Assoc., 637 F.3d at 376-80.  However, the court’s conclusion is inconsistent with Fifth Circuit law (cf. Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417, 428-29 (5th Cir. 2006)), and the United States Executive Branch has persuasively argued that any monetary contempt sanction would be unenforceable against a foreign sovereign.  See Brief of the United States as Amicus Curiae, filed on October 7, 2010, in FG Hemisphere Assoc. (“U.S. Amicus Brief”), at 7-14. 

Assuming arguendo that monetary contempt sanctions are permissible under the FSIA, the question remains whether such a step is an advisable exercise of a federal court’s power.  In the underlying discovery order, the Servaas court characterized the discovery dispute between the parties as a “routine matter[].” Docket No. 86, at 1 n.2.  However, there is nothing “routine” about ordering wide-ranging discovery against a foreign sovereign.  The language of the earlier order, and the lack of detailed analysis in the recent contempt order, suggest that the district court in Servaas did not appreciate the significance of imposing monetary contempt sanctions upon a foreign sovereign for failure to comply with a discovery order. 

At the very least, a court contemplating the imposition of monetary contempt sanctions against a foreign state for discovery violations should consider a range of issues, including:

1.  Is the contempt order enforceable against the foreign sovereign and, if not, does it constitute a proper exercise of the district court’s power?  Just as with any other form of equitable relief, enforceability should be a prime consideration for the court.  See In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539, 548 (9th Cir. 1996) (holding that where a court was without power to enforce an injunction against a foreign sovereign, the court “abused its discretion by issuing a futile injunction”); see also Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 550 (1937) (“a court of equity may refuse to give any relief when it is apparent that that which it can give will not be effective or of benefit to the plaintiff”).  If the district court cannot enforce a monetary contempt sanction against a foreign sovereign, it generally should not impose such a sanction.

2.  Is the contempt order imposed in the context of post-judgment proceedings or jurisdictional discovery?  Given that a foreign sovereign’s presumptive immunity from suit includes immunity from all of the burdens of litigation (Kelly v. Syria Shell Petroleum Dev., 213 F.3d 841, 849 (5th Cir. 2000)), it would appear that a district court’s discretion to impose monetary contempt sanctions should be limited to the post-judgment context – where the sovereign has already been held not to be immune.  Absent extraordinary circumstances, such sanctions should not be imposed in the context of FSIA jurisdictional discovery.

3.  Is the contempt order the sole remaining option, or are there other possible means to encourage compliance with the discovery order?  Since this is an important issue even outside of the FSIA context, it would appear particularly relevant in cases involving a foreign sovereign.  Cf. Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 637 n.8 (1988) (stating that “in wielding its contempt powers, a court must exercise the least possible power adequate to the end proposed”) (citations and quotations omitted).

4.  Does the case involve a foreign sovereign or an agency/instrumentality of a foreign sovereign?  Given the policies underlying the FSIA, courts should be much more wary about imposing monetary contempt sanctions upon a foreign sovereign itself (as opposed to an agency or instrumentality).  Cf. H.R. Rep. No. 94-1487, at 11 (stating that the service provisions applying to foreign sovereigns were intended “to minimize potential irritants to relations with foreign states”).  Moreover, FSIA practitioners should be aware that “a court may not sanction a foreign instrumentality for discovery violations committed by its sovereign.”  Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao People’s Democratic Republic, 10 CIV. 5256 KMW DCF, 2013 WL 3970823, at *6 (S.D.N.Y. Aug. 2, 2013).

5.  Is the contempt order consistent with international law and international practice?  Given the prevailing rules in the international realm, and the fact that the FSIA was intended to be consistent with international law (cf. H.R. Rep. No. 94-1487, at 7), this factor would generally counsel against the imposition of monetary contempt sanctions against a foreign sovereign.  See, e.g., European Convention on State Immunity, Article 18 (E.T.S. No. 074); United Nations Convention on Jurisdictional Immunities of States and Their Properties, Article 24(1); UK State Immunity Act, § 13; Canadian State Immunity Act, §§ 12(1), 10(1); Singapore State Immunity Act, § 15; Pakistan State Immunity Ordinance, § 14; Australian Foreign States Immunities Act of 1985, § 34; see also U.S. Amicus Brief at 21-24.

6.  Is the contempt order consistent with the United States’ policy to encourage foreign states to appear in court?  It is well-established that it is in “the interest of United States’ foreign policy to encourage foreign states to appear before our courts in cases brought under the FSIA.”  Hester Int’l Corp. v. Fed. Republic of Nigeria, 879 F.2d 170, 175 (5th Cir. 1989).  The United States government itself is not subject to monetary contempt sanctions in domestic courts.  U.S. Amicus Brief at 25-26.  Because the unequal treatment of foreign sovereigns in this regard is likely to be a significant foreign relations irritant, the policy of encouraging sovereigns to appear in United States courts generally does not appear well-served by the imposition of monetary contempt sanctions.

7.  What was the nature of the underlying discovery order?  If the underlying discovery order permitted wide-ranging and intrusive discovery against the sovereign, non-compliance with that order should rarely give rise to monetary contempt sanctions.  In this respect, the Servaas case is particularly troubling.  The underlying discovery order had granted the plaintiff’s motion to compel a wide range of discovery, including discovery relating to the sovereign defendants’ “‘assets and commercial activities with ties to the United States,'” requests “relating to the ‘formation of the [Ministry and Iraq’s Ministry of Trade and their] State Owned Enterprises and other agencies and/or instrumentalities,’ the ‘financial activity of the Ministry, including but not limited to all budget documents, balance sheets, income statements, and asset listings,’ and the ‘source of operating funds’ of the Ministry and Iraq’s Ministry of Trade.”  Docket No. 86, at 5 (brackets in original).  On its face, the scope of the discovery order is much too broad – both because it does not appear tailored to discover evidence relevant to the post-judgment proceedings and because it seeks sensitive (and presumably confidential) documents from Iraq’s Ministry of Trade.  Those factors alone should strongly counsel against the imposition of monetary contempt sanctions against the sovereign for failure to comply with the discovery order.

8.  Is the contempt order consistent with the doctrine of reciprocity?  Foreign sovereign immunity derives in part from “fair dealing” and “reciprocal self-interest.”   Republic of Philippines v. Pimentel, 553 U.S. 851, 866 (2008) (quotations and citations omitted).  That doctrine appears especially applicable in this context.  To provide a hypothetical, suppose that the United States is sued in foreign courts for the eavesdropping activities of the National Security Agency (“NSA”).  If the foreign court orders the United States to provide all NSA documents relevant to the particular lawsuit, the United States would almost certainly object and refuse to turn the documents over.  Under Servaas and other similar cases, the foreign court could then impose a major monetary sanction against the United States for the lack of compliance.  “In the field of international law, where no single sovereign reigns supreme, the Golden Rule takes on added poignancy.”  De Sanchez v. Banco Cent. De Nicaragua, 770 F.2d 1385, 1398 (5th Cir. 1985).  Before courts in the United States impose monetary contempt sanctions on foreign sovereigns, they should consider whether it is in the United States’ interest to face similar treatment overseas.

All of the foregoing issues should be properly taken into consideration by a court imposing monetary contempt sanctions upon a foreign sovereign; unfortunately, it does not appear that the Servaas court undertook such an analysis, and for that reason its opinion is disturbing.

Finally, as noted above, the Servaas court imposed sanctions exceeding $70,000 upon the attorneys defending Iraq and the Ministry.  Courts that contemplate imposing sanctions against FSIA defense counsel should consider that a foreign sovereign is not a typical client.  For example, with respect to discovery, a sovereign may take a principled stance that certain documents should not be turned over: “it is important to recognize the strongly held view of many foreign states that they are not subject to coercive orders by a U.S. court. Absent specific evidence to the contrary, the refusal of a sovereign state to conform to a judicial directive should not be considered as an expression of scorn or contempt for which such sanctions are normally imposed. Rather, such a refusal may reflect a determination by that foreign state that a U.S. court lacks power to control its conduct.”  U.S. Amicus Brief at 17.  It would be unfortunate if private attorneys are punished for such decisions made by foreign sovereigns, particularly since the sovereign is equal to the United States as a matter of international law – and is, unlike typical private parties in litigation, entitled to decide that it will not follow the directive of a United States court.  The sovereign itself may have to face the consequences of that decision, but the sovereign’s attorneys should not.