A UNITED States District Court for the Northern District of Illinois, has granted the request filed by the presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar, seeking the release of President Bola Tinubu’s academic records by the Chicago State University.
Judge Jeffrey Gilbert, a US magistrate, gave the ruling on Tuesday, ordering CSU to produce “all relevant and non-privileged documents” to Abubakar Atiku, the plaintiff, within two days.
“This matter is before the Court on Atiku Abubakar’s Application Pursuant to 28 U.S.C. § 1782 for an Order Directing Discovery from Chicago State University for Use in a Foreign Proceeding (“Application”) [ECF No. 1]. For the reasons discussed below, the Application is granted,” the judge ruled.
Tinubu’s lawyers have argued that their client is not willing to lift his privacy privilege, with the ruling also conceding this by using the term ‘non-privileged documents”.
Atiku had approached the court seeking an order that will compel the university to release Tinubu’s records.
Although Tinubu’s credentials indicated that he graduated in 1979 with a bachelor’s degree in accounting, there have been allegations bordering on discrepancies in the President’s certificate.
See the full order issued by the US judge below:
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
In re Application of ATIKU ABUBAKAR No. 23 C 5099
For an Order Directing Discovery from Jeffrey T. Gilbert
CHICAGO STATE UNIVERSITY United States Magistrate Judge
Pursuant to 28 U.S.C. § 1782.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Atiku Abubakar’s Application Pursuant to
28 U.S.C. § 1782 for an Order Directing Discovery from Chicago State University for Use in a Foreign Proceeding (“Application”) [ECF No. 1]. For the reasons discussed below, the Application is granted.
BACKGROUND
Atiku Abubakar was Vice-Present of Nigeria from 1999 to 2007 and was a candidate for president in Nigeria’s presidential election that occurred in February
Memorandum of Law In Support of Application for Judicial Assistance
Pursuant to 28 U.S.C. § 1782 (“Applicant’s Memorandum”) [ECF No. 4], at 2. Nigeria’s Independent National Electoral Commission (“INEC”) declared Bola Ahmed Tinubu won the election, and he is the current president of Nigeria. Mr. Abubakar says he came in second place in the presidential election. Id at 1. After the election, Mr. Abubakar along with the People’s Democratic Party filed a petition (“Petition”), challenging the results of the presidential election with the Court of Appeal in the
Presidential Election Petition Court in Nigeria (the “Nigerian Proceedings”). Id. at 1, Case: 1:23-cv-05099 Document #: 40 Filed: 09/19/23 Page 2 of 31 PageID #:2504
Mr. Abubakar contends the Nigerian Proceedings address, among other things, whether President Tinubu submitted what Mr. Abubakar characterizes as a forged diploma to the INEC stating that he received an undergraduate degree from Chicago State University (“CSU” or “Respondent”) on June 22, 1979. Memorandum of Law In Support of Application for Judicial Assistance Pursuant to 28 U.S.C. § 1782
(“Applicant’s Memorandum”) [ECF No. 4], at 2-7, 10-11; Omnibus Reply In Further Support of his Application Pursuant to 28 U.S.C. § 1782 (“Applicant’s Reply”) [ECF No. 22], at 5. Mr. Abubakar says that, under Nigerian law, the submission of a fraudulent document to the INEC would have disqualified now President Tinubu from participating in the election. Applicant’s Reply [ECF No. 22], at 5.
Mr. Abubakar filed the present Application pursuant to 28 U.S.C. § 1782 to obtain discovery from CSU for use in the Nigerian Proceedings. Application [ECF No. 1], at 1. The discovery Mr. Abubakar is seeking relates to his challenge as to the authenticity of the diploma President Tinubu submitted to the INEC and also to other educational records from CSU that Mr. Abubakar says are related to that challenge. Applicant’s Memorandum [ECF No. 4], at 3-5.
When the Application was filed, Mr. Abubakar’s Petition was pending before the Nigerian Court of Appeal. Application [ECF No. 1], at 1. On September 6, 2023 during the briefing on his Application, Mr. Abubakar notified the Court that the Nigerian Court of Appeal reportedly issued a ruling on his election challenge, finding in favor of President Tinubu and against Mr. Abubakar. Applicant’s Reply [ECF No.
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22], at 1. Mr. Abubakar has represented to this Court that he intends to appeal to the
Supreme Court of Nigeria. Id.
PROCEDURAL HISTORY
On August 2, 2023, Mr. Abubakar (“Applicant”) filed his Application [ECF No. 1] and Memorandum [ECF No. 4] in support of his Application, seeking discovery from Respondent on the CSU documents at issue. The presiding District Judge referred the Application to this Magistrate Judge for resolution. [ECF No. 7].
The day after the Application was filed, President Tinubu (“Intervenor”) filed a Motion to Intervene [ECF No. 10], which Applicant did not oppose. See Applicant’s Response to Bola A. Tinubu’s Motion to Join or Intervene [ECF No. 13]. The District Judge granted the Motion to Intervene on August 7, 2023, and this Court set a date for Intervenor to file a response to the Application and for Applicant to file a reply. [ECF Nos. 14, 15]. On August 23, 2023, CSU filed its Response to Application Pursuant to 28 U.S.C. § 1782 (“CSU’s First Response”) [ECF No. 20], and Intervenor filed his Response to Application Under 28 U.S.C. § 1782 (“Intervenor’s Response”) [ECF No. 21].
As mentioned above, when Applicant filed his Application for discovery in the district court, his Petition challenging the presidential election was pending before the Nigerian Court of Appeal. On September 6, 2023, Applicant filed his Reply [ECF No. 22] and notified the Court that the Nigerian Court of Appeal reportedly issued a ruling on his election challenge that same day, finding in favor of Intervenor and against Applicant. [ECF No. 22], at 1-2; see also Second Declaration of Angela M. Liu Case: 1:23-cv-05099 Document #: 40 Filed: 09/19/23 Page 4 of 31 PageID #:2506
(“Second Liu Decl.”) [ECF No. 23], at ¶5. Applicant further explained that he has until September 27, 2023, to file his appeal of that ruling to the Supreme Court of Nigeria, which he states he intends to do. Id.; see also Declaration of Ahmed Tijjani Uwais (“Uwais Decl.”) [ECF No. 24], at ¶13.
In light of the time constraints to file his appeal to the Supreme Court of Nigeria, Applicant narrowed the scope of the discovery he is seeking from CSU. Compare [ECF Nos. 38, 39] (revised subpoenas) with [ECF Nos. 1-1, 1-2] (original subpoenas).[1] Specifically, Applicant wants to serve four document requests, seeking true and correct copies of: (1) an exemplar of a CSU diploma issued in 1979; (2)
Intervenor’s diploma issued in 1979; (3) any exemplar of a CSU diploma that “contains the same font, seal, signatures, and wording (other than the name of the recipient and the specific degree awarded) as contained in Exhibit C to the First Liu
Declaration, which purports to be a CSU diploma issued to Mr. Tinubu on or about June 22, 1979;” and (4) the CSU documents that were certified and produced by Jamar Orr (an associate general counsel at CSU) as well as communications relating to these documents (the “Orr Documents”). [ECF No. 38], at 4-5 (revised subpoena for production of documents).
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Applicant also wants to take a Federal Rule of Civil Procedure 30(b)(6) deposition of a CSU witness to explore five topics: (1) the authenticity of the documents produced by CSU in response to the Application and how and where CSU located the documents; (2) CSU’s position on the authenticity of other CSU documents related to Intervenor purportedly produced by CSU in another Nigerian proceeding (“Enahoro-Ebah v. Tinubu”); (3) the contents of the Westberg Affidavit;[2] (4) CSU’s position on the authenticity of a letter from Caleb Westberg (the “Westberg Letter”) on CSU letterhead regarding Intervenor and other facts, including who requested the letter, who prepared the letter, and to whom it was sent; and (5) CSU’s position on the authenticity of the Orr documents and other facts regarding why the documents were certified, if he was authorized to do so, who requested the documents, and to whom they were sent. See [ECF No. 39], at 4-5.
After Applicant narrowed his discovery requests and in light of the tight timeframe, the Court requested a substantive response from Respondent to the revised subpoenas and asked CSU to file any objections it had to the scope of the revised subpoenas prior to the hearing. CSU filed its Response to Court Order Dated September 8, 2023 (“CSU’s Second Response”) [ECF No. 32]. Prior to the hearing, Intervenor also requested and was granted leave to file a Sur-Response to Reply in Support of Application (“Intervenor’s Sur-Response”) [ECF No. 33].
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Mr. Abubakar as Applicant, CSU as the responding party from whom discovery is being sought, and President Tinubu as Intervenor have filed briefs with the Court setting forth their positions regarding the propriety of the discovery sought in the Application and submitted evidence for the Court’s consideration. The Court held a hearing on September 12, 2023, and heard arguments from the parties.
III. ANALYSIS
28 U.S.C. § 1782 provides that a district court may authorize the production of documents or testimony for use in a foreign legal proceeding unless the disclosure would violate a legal privilege. 28 U.S.C. § 1782(a). Determining whether to grant an application under Section 1782 involves a two-part analysis. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004). First, an applicant must satisfy the threshold statutory requirements set forth in 28 U.S.C. § 1782(a). If the district court determines an applicant has satisfied the threshold requirements and it has the authority to grant the application, the district court then must focus its analysis on discretionary factors to determine whether and to what extent the Section 1782 application is appropriate. Intel, 542 U.S. at 264 (“[A] district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so.”).
The Statutory Requirements of 28 U.S.C. § 1782 Are Satisfied
28 U.S.C. § 1782 requires an applicant to satisfy three straight-forward threshold requirements: (1) the person or entity from whom the discovery is sought must reside or be found in the district of the court to which the application is made; (2) the discovery must be “for use” in a proceeding before a foreign tribunal; and (3) Case: 1:23-cv-05099 Document #: 40 Filed: 09/19/23 Page 7 of 31 PageID #:2509
the application must be submitted by a foreign or international tribunal or an “interested person.” 28 U.S.C. § 1782. The first requirement is not disputed in this case. Respondent is a public university located with this judicial district. Intervenor’s Response [ECF No. 21], at 5; CSU’s Response [ECF No. 20]. Intervenor, however, disputes whether Applicant is seeking the discovery “for use” in the Nigerian Proceedings and whether Applicant is “an interested person” in the Nigerian
Proceedings in which this discovery would be used.
The Discovery is “For Use” in the Nigerian Proceedings
To obtain discovery under 28 U.S.C. § 1782(a), an applicant must establish
“that the discovery sought is for use in a proceeding before a foreign tribunal.” In re King, 2021 WL 722850, at *1 (N.D. Ill. Feb. 24, 2021). “‘[F]or use in’ mirrors the requirements in Federal Rule of Civil Procedure 26(b)(1) and means discovery that is relevant to the claim or defense of any party, or for good cause, any matter relevant to the subject matter involved in the foreign action.” In re Application for an Ord. for Jud. Assistance in a Foreign Proceeding in the Labor Court of Brazil, 466 F. Supp. 2d 1020, 1029 (N.D. Ill. 2006). Moreover, the proceeding does not need to be pending at the time of the discovery request; it is sufficient that “the planned proceedings are ‘within reasonable contemplation.’” Id. (quoting Intel, 542 U.S. at 259); Heraeus Med. GmbH v. Biomet, Inc., 2021 WL 4133710, at *4 (N.D. Ind. Sept. 10, 2021) (“28 U.S.C. § 1782 ‘does not require that [a] … foreign … proceeding must have already commenced or … be pending or imminent….’”) (internal citations omitted).
Applicant argues the discovery he seeks from Respondent regarding the authenticity of documents Intervenor submitted to the INEC or more broadly related Case: 1:23-cv-05099 Document #: 40 Filed: 09/19/23 Page 8 of 31 PageID #:2510
to the status of Intervenor’s degree from CSU is “for use” in the Nigerian Proceedings, including Applicant’s intended appeal to the Supreme Court of Nigeria, within the meaning of 28 U.S.C. § 1782. Applicant’s Memorandum [ECF No. 4], at 2-6, 10-11; Applicant’s Reply [ECF No. 22], at 3-7. In the Nigerian Proceedings challenging the election results, Applicant argued, among other things, that Intervenor submitted a forged diploma to the INEC stating that he received an undergraduate degree from CSU on June 22, 1979. Applicant’s Memorandum [ECF No. 4], at 2-6, 10-11;
Applicant’s Reply [ECF No. 22], at 3-7. Applicant says Section 137(1)(j) of the Nigerian Constitution and Section 134(1)(a) of Nigeria’s Electoral Act of 2022 provide that a person is not qualified to participate in a Nigerian presidential election if the candidate has submitted a forged certificate and that such a disqualification challenge may be raised post-election. See Applicant’s Reply [ECF No. 22], at 5 (citing Uwais Decl. [ECF No. 24], at ¶3 and Exs. A & B)).
Applicant questions the authenticity of the CSU diploma Intervenor presented to the INEC before the election because, among other things, a second CSU diploma has since emerged (dated June 27, 1979) that bears the name “Bola Ahmed Tinubu” but also presents with a different font, punctuation, seal, and signatures, than the
June 22, 1979 diploma, among other alleged discrepancies. Applicant’s Memorandum [ECF No. 4], at 2-6; Applicant’s Reply [ECF No. 22], at 5-6. Applicant also references other documents allegedly produced by CSU for use in related electoral challenge proceedings in Nigeria that he says raise additional questions about the authenticity of the diploma that Intervenor submitted to the INEC and his other educational Case: 1:23-cv-05099 Document #: 40 Filed: 09/19/23 Page 9 of 31 PageID #:2511
records from CSU. Applicant’s Memorandum [ECF No. 4], at 6; Applicant’s Reply [ECF No. 22], at 8 (citing Uwais Decl. [ECF No. 24] at ¶6 & Ex. D). Because of the discrepancies in some of the documents purportedly issued by CSU, Applicant says there are questions about whether all the CSU documents actually came from CSU and when they were created. Applicant’s Memorandum [ECF No. 4], at 6; Applicant’s
Reply [ECF No. 22], at 6. Although Applicant acknowledges that CSU has stated that Intervenor did, in fact, graduate from CSU on June 22, 1979, Applicant still questions whether President Tinubu actually attended and received an undergraduate degree from CSU. Applicant’s Reply [ECF No. 22], at 5-6. At least in the Court’s view, however, the primary issue that animates Applicant’s position in this case appears to be whether a CSU diploma in the name of “Bola Ahmed Tinubu” dated June 22, 1979, that was submitted to the INEC before the Nigerian presidential election in February 2023 is genuine or was forged.
Intervenor contends that the discovery Applicant seeks is not relevant to the Nigerian Proceedings because issues regarding his educational background were not referenced specifically in Applicant’s Petition filed with the Court of Appeal. See Intervenor’s Response [ECF No. 21], at 5-6 (citing [ECF No. 5-2]). Those matters instead were raised in Applicant’s reply materials filed in support of the Petition. As addressed further below, the Nigerian Court of Appeal declined to consider issues related to Intervenor’s educational background that had not been included in
Applicant’s Petition but rather were belatedly raised for the first time in Applicant’s Case: 1:23-cv-05099 Document #: 40 Filed: 09/19/23 Page 10 of 31 PageID #:2512
reply filings. See September 6, 2023 Judgment in the Presidential Election Petition Court (“Nigerian Court of Appeal Decision”) [ECF No. 34], at 545-558, 606, 608-09.3
Applicant responds that in his intended appeal of the Nigerian Court of Appeal Decision, the Supreme Court of Nigeria can consider new evidence in “exceptional circumstances” under the Nigerian Electoral Act of 2022 and/or in its discretion, and he provides a declaration to that effect from his counsel in the Nigerian Proceedings. Applicant’s Reply [ECF No. 22], at 10; Uwais Decl. [ECF No. 24], at ¶12 & Ex. G. Applicant further argues that whether the Supreme Court of Nigeria actually would consider any evidence obtained through discovery in this case is irrelevant to the “for use” analysis because the statute does not impose a foreign admissibility requirement. Applicant’s Reply [ECF No. 22], at 7.
3 Applicant’s Petition in the Nigerian Proceedings generally raised the argument that Intervenor “was at the time of the Election not qualified to contest the Election,” but apparently without the addition of supporting facts or evidence. See Applicant’s Reply [ECF No. 22], at 3-4 (citing Declaration of Angela Liu In Support of the Application (“First Liu Decl.”) [ECF No. 5], Ex. B, Petition in Abubakar et al. v. INEC et al., at ¶16(d); see also [ECF No. 5], Ex. B at ¶146. Applicant submitted a declaration from one of his attorneys in the Nigerian Proceedings attesting that arguments and evidence about the authenticity of Intervenor’s diploma were submitted by Applicant in those Proceedings. Uwais Decl. [ECF No. 24], at ¶4. In addition, that declaration also states that a related case (brought by Peter Obi and the Nigerian Labour Party) raised questions about additional documents related to Intervenor’s educational background (the Orr Documents), and that Mr. Obi’s case has been consolidated with Applicant’s proceeding. Uwais Decl. [ECF No. 24], at ¶6. The Court notes the Nigerian Court of Appeal Decision declined to consider that evidence and the underlying argument that Intervenor was not qualified to participate in the Nigerian election because the argument was raised for the first time in reply filings rather than in the initial Petition. [ECF No. 34], at 545-558, 606, 608-09. The Court understands Applicant intends to appeal that Decision, and as discussed below, Applicant submitted evidence in support of his argument that there is a mechanism by which new evidence could be presented to the Supreme Court of Nigeria.
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Based on the record submitted with the Application, the Court agrees with Applicant. In Brandi-Dohrn v. IKB Deutsche Industriebank AG, the Second Circuit joined several other circuit courts in concluding “as a district court should not consider the discoverability of the evidence in the foreign proceeding, it should not consider the admissibility of evidence in the foreign proceeding in ruling on a section 1782 application.” 673 F.3d 76, 82 (2d Cir. 2012) (citing decisions from First, Third and Ninth Circuits). Although the Seventh Circuit has not addressed this issue, district courts in this jurisdiction similarly have concluded that whether the evidence sought in discovery is admissible in evidence in the foreign proceeding should not be considered in determining whether the Application satisfies the “for use” requirement of Section 1782. See, e.g., Lumenis Ltd. v. Alma Lasers Ltd., 2013 WL 1707571, at *2 (N.D. Ill. Apr. 19, 2013) (“courts have found the term ‘for use in’ does not require the material request to be discoverable or admissible in the foreign jurisdiction”); In re Labor Court of Brazil, 466 F. Supp. 2d at 1029-30 (same). Thus, as the Second Circuit explained, “a Section 1782 applicant must establish that he or she has the practical ability to inject the requested information into a foreign proceeding” and “it is not fatal to the application that he or she lacks a claim for relief before the foreign tribunal…. Rather, the term ‘for use’ in Section 1782 has only its ordinary meaning— that the requested discovery is ‘something that will be employed with some advantage or serve some use in the proceeding.’” In re Accent Delight Int’l Ltd., 869 F.3d 121,
132 (2d Cir. 2017).
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Consistent with this authority, it is sufficient for purposes of 28 U.S.C. § 1782 that Applicant has presented evidence of a legal process in Nigeria – his appeal to the Supreme Court of Nigeria – by which the discovery he seeks here could be used in that country. Whether or not the Supreme Court of Nigeria will consider or admit the new evidence sought in this Application is beyond the purview of this Court. See In re Labor Court of Brazil, 466 F. Supp. 2d at 1029 (holding “the history of the statute, the case law, and the prudent tendency of American courts to avoid construing foreign law support the plain meaning that ‘for use in’ does not require that the discovery be admissible in the foreign proceeding”). Applicant, therefore, has made the “for use” showing required under 28 U.S.C. § 1782 by providing evidence that the Supreme Court of Nigeria could, at the very least, consider the new evidence he seeks to discover here.[3]
Based on this record, the Court finds Applicant has satisfied the statutory requirement that the requested discovery is “for use” in a proceeding before a foreign tribunal—in this case, specifically, Applicant’s anticipated appeal to the Supreme
Court of Nigeria.