Right of Access

Court Seals Name of Expert on Venezuelan Law

|The Volokh Conspiracy |

From Judge Katherine Polk Failla (S.D.N.Y.) last week in Petroleos de Venezuela S.A. v. MUFG Union Bank, N.A., a commercial dispute in which the judge may have to apply Venezuelan law, and would therefore consider a report of an expert on Venezuelan law:

On July 7, 2020, Plaintiffs filed a letter motion requesting that the Court compel Defendants to disclose publicly the identity of their Venezuelan law expert…. After carefully considering the parties' submissions, the Court determined that Defendants had not made a sufficiently specific showing of potential danger to their expert were their expert's identity to be publicly disclosed, and therefore ordered Defendants to submit further details, which the Court in turn would review in camera. On July 29, 2020, Defendants filed the requested submissions on an ex parte basis. Having now reviewed Defendants' submissions, the Court finds that there is sufficient evidence of potential harm to Defendants' expert that protection of the expert's identity is warranted. Accordingly, Plaintiff's motion to compel disclosure is DENIED.

The defendants had argued that,

In light of the volatile political and security situation in Venezuela, the expert has reasonable concerns that disclosure of the expert's name would risk retaliation against the expert and the expert's family and their personal safety. There is no public interest served in disclosing the expert's identity, where the expert's full opinions are available on the Court's public docket and the expert's identity is not at issue….

Representatives of the Guaidó administration, which is directing this litigation for PDVSA and its affiliates, have engaged in a months-long campaign of inflammatory rhetoric, not only against the Maduro regime, but against highly regarded independent figures who have been critical of the policies or actions of the Guaidó administration or Plaintiffs' position in this case. As this Court is aware, the Guaidó administration has publicly charged that any Venezuelan legal scholar testifying for Defendants would be acting "contrary to what is ordered by the Constitution" and would be "trying to justify the actions of Maduro's regime." Similar vitriol has been directed against others who have questioned the administration's litigation position. The Guaidó administration has falsely and baselessly accused holders of the 2020 Notes of conspiring with the Maduro regime to hand them control of CITGO, although, as the Court is aware from the summary judgment submissions, that accusation is not supported by a shred of evidence. See Ex. 1 at 7 (calling the 2020 Notes the "product of a conspiracy in which [] PDVSA participated.")

Just last month, the former Special Attorney General publicly claimed that a highly regarded, politically independent Venezuelan economist, Francisco Rodríguez, who has written that the issuance of the 2020 Notes was "clearly legal" under Venezuelan law and has criticized the administration's litigation strategy, was engaged in a corrupt conspiracy" with the Maduro regime and holders of the 2020 Notes. In interviews since
that time, individuals associated with the Guaidó administration have accused Rodríguez of "treason to the homeland" and "play[ing] for both teams." This pattern of professional attack has also resulted in the resignation of Alejandro Grisanti from PDVSA's Ad Hoc Board of Directors, following the "constant disparagement both in public and private" by the then-Special Attorney General "against everything he regards as being contrary to himself." In that letter, Grisanti stated that he had expressed opposition to this lawsuit and called Plaintiffs' strategy "misguided." That the then-Special Attorney General continued to engage in such hostile conduct toward opponents of this litigation after this Court's admonishments makes sealing Defendants' expert's identity all the more reasonable.

The expert's legitimate concerns also extend to potential retaliation from the Maduro regime. The Maduro regime retains de facto control of PDVSA's Venezuelan operations and Venezuela's petroleum assets in that country. It would benefit financially, and would seek to benefit politically, from a victory by Plaintiffs that relieves PDVSA of a multi-billion dollar obligation. The Maduro regime, as Plaintiffs acknowledge, "has a well-documented record of persecution." …

Moreover, Plaintiffs' counsel knows the identity of the expert and has had the opportunity to challenge the expert's statements and opinions, including through rebuttal reports and sworn declarations.

The plaintiffs had disagreed in their initial motion to require disclosure of the expert's identity (the judge had declined to authorize a reply to the defendants' arguments):

The only rationale offered for continuing to conceal their expert's identity has been a purported concern for his safety. But, unlike Venezuelans who have been targeted by the Maduro regime for being part of or assisting the Guaidó Administration, there is no credible reason to believe that Defendants' expert would be under threat if his involvement in this case were known. As the U.S. Government has recognized, the Maduro regime has a well-documented record of persecution, while the Guaidó Administration is devoted to restoring democracy and the rule of law.

I made some inquiries and got the sense that the concerns about the expert's safety may be overstated. (The expert might be worried about harm to his reputation or professional connections, but that's generally not a basis for keeping an expert's identity secret.) At the same time, I obviously don't know what's in the sealed letter from the defendants that led the judge to agree with their confidentiality request. In any event, this struck me as an interesting and unusual example of confidentiality in the American legal system, so I thought I'd pass it along.