United States District Judge Nancy L. Maldonado has rejected the objection of Nigeria's President Bola Tinubu to the order of US Judge Gilbert, which directed the Chicago State University to release the President's academic record to former Vice President Atiku Abubakar, candidate of the Peoples Democratic Party in the February 25 Nigerian Presidential election.
In the order entered on September 30, obtained by THISDAY, Judge Maldonado, said: "The Court therefore grants Mr. Abubakar's application under 28 U.S.C. § 1782. CSU is directed to respond to Mr. Abubakar's subpoena in the time and manner provided for below. "
The order in the notification of docket entry made by the clerk on September 30, 2023 reads: "MINUTE entry before the Honorable Nancy L. Maldonado: For the reasons stated in the Court's accompanying Memorandum Opinion and Order, the Court overrules President Tinubu's objections [44] and adopts Judge Gilbert's recommended decision [40] in full. The Court therefore grants Mr. Abubakar's application under 28 U.S.C. § 1782. [1]. In reaching this conclusion, the Court emphasizes that it is expressing no view on the merits of Mr. Abubakar's underlying claims regarding President Tinubu or his graduation from CSU, or on the validity of the Nigerian election. Nor is the Court taking any position on what any of the documents or testimony from CSU may or may not ultimately show.
"The Court simply finds, on the narrow question before it, that Mr. Abubakar is entitled to the production of documents and testimony that he seeks from CSU.
"Respondent CSU is directed to produce all relevant and non-privileged documents in response to Requests for Production Nos. 1 through 4 (as narrowed by Judge Gilbert and adopted by the District Court in its opinion) in Mr. Abubakar's subpoena, by 12:00 p.m. (noon) CDT, on Monday, October 2, 2023. The Rule 30(b)(6) deposition of CSU's corporate designee must be completed by 5:00 p.m. CDT on Tuesday, October 3, 2023. Given the October 5, 2023 filing deadline before the Supreme Court of Nigeria, the Court will not extend or modify these deadlines.
"Further, the Court notes that at the recent emergency hearing, the possibility of a stay pending an appeal to the Seventh Circuit Court of Appeals was raised. The Court cautions President Tinubu that any request for a stay before this Court will be denied, as the Court finds any stay impracticable in light of the fast approaching Supreme Court of Nigeria deadlines. President Tinubu is, of course, free to request a stay directly from the Seventh Circuit should he file any appeal. Judgment is entered in favor of Atiku Abubakar. (ca, )"
Judge Maldinado, in the Memorandum Opinion and Order, noted: " Atiku Abubakar initiated this action pursuant to 28 U.S.C. § 1782, a federal statute that allows a federal district court to order a person or entity within the district to produce documents or testimony for use in a foreign legal proceeding. Mr. Abubakar is a former Vice President of Nigeria and was a candidate for president in Nigeria's February 2023 presidential election. Mr. Abubakar seeks an order under 28 U.S.C. § 1782 directing Chicago State University ("CSU"), which is located in this district, to produce certain documents and testimony related to Bola Ahmed Tinubu, the declared winner of the February 2023 Nigerian presidential election.
"Mr. Abubakar has challenged the validity of President Tinubu's election in Nigerian courts on a number of grounds, including a claim that President Tinubu submitted a forged diploma to the Nigerian Independent National Electoral Commission ("INEC") stating that he graduated from CSU. Mr. Abubakar contends the fraudulent submission would have disqualified President Tinubu from participating in the election, and he therefore seeks records and testimony from CSU related to President Tinubu's diploma, and his graduation from CSU, to support Mr. Abubakar's challenge to the election results.
"Mr. Abubakar filed his application under 28 U.S.C. § 1782 on August 2, 2023, (Dkt. 1), and the Court referred the matter to Magistrate Judge Gilbert for resolution. (Dkt. 7.) President Tinubu filed a motion to intervene in the action, which Mr. Abubakar did not oppose, and which this Court granted. (Dk. 13.) After briefing and argument, Judge Gilbert issued a ruling on September 19, 2023, granting Mr. Abubakar's application. In light of pending Nigerian court deadlines, Judge Gilbert ordered CSU to respond to Mr. Abubakar's document requests within two days, and to produce a witness to sit for a deposition within four days. (Dkt. 40.) 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72 provide that a party objecting to a magistrate judge's ruling may seek review from a district judge within 14 days of service of the magistrate judge's ruling.
"On September 21, 2023, the day CSU was ordered to respond to the subpoena, President Tinubu filed an emergency motion before the undersigned District Judge requesting that the Court review Judge Gilbert's decision and stay the order requiring CSU to respond to the subpoenas until such time that the Court could complete its review. The Court held an emergency hearing that same day and granted the request for a stay, agreeing that delaying the production of documents and testimony was necessary to allow President Tinubu the opportunity to seek review of Judge Gilbert's decision, as was his right under Rule 72.
"Given that the Nigerian court deadlines were fast approaching, the Court set an expedited briefing schedule on President Tinubu's objections. The parties have now completed that briefing, and the Court has reviewed their submissions. For the reasons stated in this Memorandum Opinion and Order, the Court overrules President Tinubu's objections and adopts Judge Gilbert's recommended decision in full."
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She consequently granted Atiku's application under 28 U.S.C. § 1782, and directed CSU to respond to Mr. Abubakar's subpoena in the time and manner provided.
Judge Maldonado further stated that: "In reaching this conclusion, the Court emphasizes that it is expressing no view on the merits of Mr. Abubakar's claims regarding President Tinubu's graduation from CSU, or on the validity of the Nigerian election. Nor is the Court taking any position on what any of the documents or testimony from CSU may or may not ultimately show. These are all matters for the Nigerian courts to resolve under Nigerian law, and it is not appropriate for this U.S. Court to opine on such issues or attempt to predict how foreign courts might ultimately rule if and when they are presented with any evidence from CSU.
" The issue presented to this Court is much more limited: whether, under the applicable U.S. law and the federal rules of discovery, Mr. Abubakar is entitled to the production of documents and testimony that he seeks from CSU. The Court finds that he is. This decision is in line with the underlying purpose of 28 U.S.C. § 1782 to promote judicial assistance to foreign courts and comports with the liberal discovery standards under the Federal Rules of Civil Procedure, which encourage disclosure of potentially relevant information."
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