President Bola Tinubu has informed the United States District Court for the Northern District of Illinois Eastern Division that the presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar’s quest to obtain his academic records from the Chicago State University (CSU) is borne out of malice and tantamount to a “fishing expedition”.
In his reply in support of objections to the Magistrate Judge’s ruling on the application for a discovery under 28 USC 1782, filed on Thursday, Tinubu said the Magistrate, Jeffrey Gilbert, who granted Atiku access to the records on September 19, lacked the powers to give such an order under section 1782 of the US statute.
Tinubu also insisted that the information sought could not be used to support the opposition candidate’s appeal before the Nigerian Supreme Court as falsely claimed.
He said Atiku’s insistence to obtain the records from CSU shows that he “misunderstands” the import of judgement of the Presidential Election Petitions Court (PEPC).
He said, “The Nigerian court decision precluded the applicant (Atiku) from asserting the theory he seeks to support with discovery here.
“Applicant’s response notes, but ignores the fact that he included only a single, general sentence about Intervenor being ‘not qualified’ in his 200+ petition in Nigeria.
“The Nigerian court made it clear that the applicant’s conduct precluded him from asserting any facts surrounding that generalized statement finding that the applicant either failed to explain “what [he] meant by qualification for the election or simply deliberately kept it back when filing [his] petition.
“Applicant’s failure to include supporting allegations to flush out the general statement in his petition forecloses any opportunity to try to submit new material to the Nigerian Supreme Court.
“The discovery sought here, with one narrow exception, is not “for use” in the pending appeal, and the Nigerian courts were unequivocally hostile to the discovery.
“Application of the principles of comity and parity included in section 1782, require the Nigerian decision be given effect and that the application be denied. The federal rules also do not permit a fishing expedition to challenge established fact, and that is a further reason to deny the application.”
Tinubu also maintained that “the Magistrate erred in granting the Application and ordering Chicago State University to comply with the subpoenas for documents and a deposition.
“The ruling should be set aside and the application denied,”
Tinubu’s application also reads in part, “ Applicant’s assertion that the ruling here should be characterized as non- dispositive is also inconsistent what the Seventh Circuit said in Rajaratnam about referrals and in Haraeus Kulzer GmbH about the finality of decisions on section 1782 applications.
In Rajaratnam, the Seventh Circuit rejected the theory that a referral may allow a magistrate to enter a final decision, observing that “[s]uch a referral does not permit the magistrate judge to enter a final decision appealable to this court.” 47 F.3d at 924. And, in Haraeus Kulzer GmbH v. Biomoet, Inc., the Seventh Circuit observed that discovery orders are normally unappealable, but in a section 1782 application “the orders . . . are final because there is no pending litigation in the district court.” 633 F.2d 591, 594 (7th Cir. 2011).
“Here, the Magistrate entered a ruling that purported to be final decision that ended the dispute and ordered compliance. A magistrate cannot enter such a decision. The review should be de novo.1
The Discovery is Not “For Use” In Applicant’s Emergency Appeal.
Applicant’s response makes clear that the “other documents” are not “for use” in his pending appeal – the appeal that he has asked this Court to expedite its decision based upon. (Dkt. 45, pg. 4.) According to Applicant, the “other documents” were submitted “in a related proceeding” and Applicant should be able to “authenticate documents that are already in the public record.” (Id.) “Related” proceedings are not.
“In a de novo review, the Court can consider the totality of Intervenor’s objections and the correctness of the Magistrate’s ruling on all points, contrary to what Applicant suggests. (See Dkt. 45, pg. 8, n.3.)
“The proceedings the Application is based upon, and Applicant cannot invoke section 1782 for other proceedings.
Nor does section 1782 provide authority for foreigners to authenticate documents they find in public records.
“The discovery sought by Applicant is simply not “for use” in the pending appeal and should not be permitted.
The Nigerian Courts Are Unreceptive To Applicant’s Discovery.
Applicant misunderstands the point in the objection about the effect of the decision from Nigeria. The Nigerian court decision precluded Applicant from asserting the theory he seeks to support with discovery here. Applicant’s response notes, but ignores the fact that he included only a single, general sentence about Intervenor being “not qualified” in his 200+ petition in Nigeria. (Dkt. 45 pg. 6.)
“The Nigerian court made clear that Applicant’s conduct precluded him from asserting any facts surrounding that generalized statement. (See Dkt. 34, pgs. 556-562, finding that applicant either failed to explain “what [he] meant by qualification for the election or simply deliberately kept it back when filing [his] petition”).)
“Applicant’s failure to include supporting allegations to flush out the general statement in his petition forecloses any opportunity to try to submit new material to the Nigerian Supreme Court.2
A foreign court’s decision to bar the discovery sought should not present an opportunity for the Applicant to seek that very same discovery. “
Atiku had requested the documents on the claim that the records Tinubu submitted to the Independent National Electoral Commission (INEC) were not his original certificates.
The PDP presidential candidate added that the documents had been altered, which is the grounds to nullify Tinubu’s election victory.
On September 19, a US magistrate court granted Abubakar’s request and ordered CSU to turn in Tinubu’s records within 48 hours.
Two days later, on September 21, Tinubu filed a motion seeking to stop CSU from releasing his records.
The President also filed an appeal seeking to set aside the ruling of the magistrate court.
