Summary

Before the Court is petitioner Republic of Turkey's ("Petitioner") renewed petition seeking an order directing discovery from respondent Hamit Çiçek ("Respondent") pursuant to 28 U.S.C. § 1782. (D.E. No. 54 ("Petition")). The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Having considered the parties' submissions, the Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b); see also L. Civ. R. 78.1(b). As set forth below, the Court DENIES the Petition.

Background[1]

The procedural history of this case is set forth in the Court's June 4, 2020 Letter Order, and the Court need not repeat it here. (See D.E. No. 53 ("Letter Order")). In the Letter Order, the Court vacated Magistrate Judge Mannion's prior orders in this case out of an abundance of caution; the vacated orders granted Petitioner's November 8, 2019 ex parte petition for an order directing discovery from Respondent pursuant to 28 U.S.C. § 1782, (D.E. No. 9 ("Initial Order")), and denied Respondent's motion to vacate the Initial Order (D.E. No. 48). (Letter Order at 3). The Court instructed the parties to submit "a renewed motion and streamlined briefing" to "aid in the Undersigned's review" of the renewed section 1782 petition. (Id. at 2). Petitioner filed the Petition on June 9, 2020; Respondent filed his opposition brief on June 15, 2020; and Petitioner filed a reply on June 18, 2020.[2]

Petitioner seeks to obtain documents and information from Respondent to be used in an ongoing international arbitration filed by Cascade Investments NV ("Cascade") against Petitioner under the bilateral investment treaty between the Belgo-Luxembourg Economic Union and the Government of the Republic of Turkey for Promotion and Protection of Mutual Investments ("Treaty"), and in accordance with the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States ("ICSID Convention"). (The "International Arbitration") (D.E. No. 54-3 ("Mov. Br.") at 1). Cascade claims to be the bona fide owner of 99.3% of the shares in a Turkish media corporation, Cihan Medya Dagitim A.S. ("CMD"). (Id.). In general, Cascade alleges that Petitioner "breached its Treaty obligations vis-à-vis Cascade by allegedly treating its investment in CMD unfairly and inequitably, failing to protect CMD, and unlawfully expropriating the company." (Id.). Cascade seeks over $100 million in damages plus interest from Petitioner. (Id. at 5-6).

Petitioner has challenged the jurisdiction of the arbitral tribunal presiding over the International Arbitration (the "ICSID Tribunal"). (Id. at 6). To establish the ICSID Tribunal's jurisdiction, Cascade must show "(1) that it is a good faith `investor' from the Belgo-Luxembourg Economic Union that made an investment in Turkey that qualifies for protection under the Treaty and the ICSID Convention, and (2) that Cascade made this bona fide investment before a dispute with [Petitioner] arose, or was foreseeable." (Id. at 1-2 (emphasis in original)). Petitioner's primary challenge to the ICSID Tribunal's jurisdiction is that Cascade acquired its stake in CMD at a time when it was aware of a dispute with Petitioner, and thus specifically acquired the shares to internationalize the dispute, invoking the Treaty's protections and avoiding a dispute in a Turkish Court. (Id. at 5 & 6). This is where Respondent becomes relevant. Petitioner explains that, since 2014, it has been investigating several Turkish news outlets, including CMD, for alleged ties to a known terrorist organization Fetullahçh Terör Örgütü ("FETÖ"). (Id. at 4; see also D.E. No. 54-4 ("Mascarenhas Decl.") ¶ 5). When the investigation began, Respondent (a Turkish national) owned 23.13% of shares in CMD. (Mov. Br. at 4; Mascarenhas Decl. ¶ 5; see also D.E. No. 55-2 ("Tahsin Decl.") ¶ 9). In December of 2014, Respondent reportedly purchased an additional 66.67% shareholding stake in CMD from Feza Gazetecilik A.ª. ("Feza"), another Turkish media company under similar investigation for ties to FETÖ. (Mov. Br. at 4; Opp. Br. at 4). In March of 2015, Respondent acquired an additional 10% stake, bringing his total shares in CMD to 99.8%. (Id. at 5). Shortly thereafter, on May 5, 2015, Respondent sold 89.8% of his shares in CMD to Cascade, and his remaining 10% of shares to Faruk Kardic, then-chairman of CMD's executive board. (Id.). Cascade eventually acquired an additional 10.13% ownership stake from Kardic, and ultimately owned 99.93% of CMD. (Id.). Petitioner suggests that this series of events was an attempt to quickly internationalize the brewing dispute between CMD and Petitioner for the purpose of creating arbitral jurisdiction under the Treaty. (Id.). Thus, Petitioner seeks relevant information from Respondent about his acquisition and sale of shares in CMD through the instant Petition. (Id.).

Respondent opposes the Petition on multiple grounds. (See generally D.E. No. 55-1 ("Opp. Br.")). Generally speaking, Respondent's objections stem from the fact that he has been criminally charged in Turkey with (i) establishing and running an armed terrorist organization; (ii) laundering revenues from crime; and (iii) attempting to overthrow the constitutional order. (Opp. Br. at 4; see also Tahsin Decl. ¶¶ 5-6; D.E. No. 55-22 at 3; D.E. No. 55-23 at 43). In addition, Respondent has been under investigation for other alleged crimes related to his alleged participation with FETÖ and the Gulen Movement. (Opp. Br. at 32; Tahsin Decl. ¶16(C); see also D.E. No. 57-2 ("Kul Decl.") ¶ 5). Respondent fled Turkey to the United States, sought and was granted indefinite asylum based on political persecution he faced in Turkey, and eventually settled in New Jersey. (See D.E. No. 55-13 ("Çiçek Decl.") ¶ 2). Thus, as Respondent points out, the subject matter of the discovery sought here overlaps with the subject matter of Respondent's criminal charges in Turkey and his reasons for seeking asylum in the United States. (See generally Opp. Br.). Respondent believes that "the Republic seeks discovery under the guise of a civil arbitration claim" so that it may "use any discovery it obtains to aid in its ongoing criminal prosecutions of [Respondent]," and urges the Court to deny the Petition (Id. at 1 & 34).

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Footnotes

[1] The Court pulls the relevant factual background from the parties' submissions for purposes of this motion.

[2] Petitioner inadvertently filed an incorrect document in its initial reply (D.E. No. 56) and corrected the error in a supplemental submission (D.E. No. 57). (See D.E. No. 58). Petitioner requested that the Court remove the mistaken filing, and Respondent has not opposed the request. (Id.). As such, the Court only considers the corrected submission (D.E. No. 57).