Case of the Day: Starski v. Kirzhnev

I chose the case of the day, Starski v. Kirzhnev (D. Mass. 2011), because it involves an area of international judicial cooperation we haven’t yet considered, namely, proof of the authenticity of a foreign official document so that it can be admitted in evidence in US proceedings.

Vietnam owed a debt to Russia. Starski had connections in the Vietnamese government, and Kirzhnev had contracts in the Russian government. Starski’s claim was that he had a contract with Kirzhnev under which Kirzhnev was to use his contacts to facilitate a debt-swap transaction between the two countries. Upon the occurrence of the transaction, Kirzhnev was to pay Starski a commission. The transaction went through, but Starski alleged that Kirzhnev never paid. He sued him for breach of contract.

Before trial, the parties sparred over the admissibility in evidence of what purported to be a copy of an official document from the Moscow City Court evidencing Kirzhnev’s conviction on charges of bribing an official, illegal border crossing, and forgery. Starski sought to use the document to impeach Kirzhnev’s character for truthfulness. The court held that the document was inadmissible.

The case was tried to a jury, which found that there was no contract between the parties. The court entered judgment on on the verdict for Kirzhnev. Starski moved for a new trial on the grounds that the court had erred by excluding the evidence of Kirzhnev’s supposed criminal conviction. The court denied the motion, finding, as it had previously, that the document was not properly authenticated.

The document itself is, as the judge found, unclear. It does not appear to be a copy of the judgment of the Moscow court, but instead a response to an inquiry (“this is to confirm …”), signed by the secretary of the court, and apparently lacking a seal.

There were two possible routes to admissibility. The first in Rule 44(a)(2) of the Rules of Civil Procedure, which provides:

(A) In General. Each of the following evidences a foreign official record — or an entry in it — that is otherwise admissible:

(i) an official publication of the record; or

(ii) the record — or a copy — that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.

(B) Final Certification of Genuineness. A final certification must certify the genuineness of the signature and official position of the attester or of any foreign official whose certificate of genuineness relates to the attestation or is in a chain of certificates of genuineness relating to the attestation. A final certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.

(C) Other Means of Proof. If all parties have had a reasonable opportunity to investigate a foreign record’s authenticity and accuracy, the court may, for good cause, either:

(i) admit an attested copy without final certification; or

(ii) permit the record to be evidenced by an attested summary with or without a final certification.

The second is Rule 902(3), which provides:

A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

The rules are largely overlapping, but note that Rule 44 expressly incorporates the Hague Apostille Convention: a foreign official records is authenticated  by “a certification under a treaty or convention to which the United States and the country where the record is located are parties”, i.e., by an apostille. Rule 902(3) does not mention an apostille as an alternative to “final certification”, but even under Rule 902(3), a documents with an apostille affixed must be treated as authentic. 31 Wright & Miller §7137 n.21 (1st ed.).

The judge began his discussion on a curious note:

Because Russia has “unilaterally suspended all judicial cooperation with the United States in civil and commercial matters” under the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters since July 2003, final certification is usually necessary to admit a Russian official record.

It’s not clear why this should be so. When you request an apostille from a competent authority, you don’t need to specify the purpose for which you are going to use the document. (contrast the Hague Service Convention and the Hague Evidence Convention, where requests to the receiving state’s central authority require disclosure of the foreign proceeding for which the applicant is requesting assistance). Under Article 5 of the Convention, competent authority is required to issue an apostille to the signer of the document “or any bearer.” It’s not clear why, in other words, Starski’s representatives couldn’t simply have gone to the appropriate Russian government office and obtained an apostille, without mentioning its intended use in US litigation and thus without implicating Russia’s unhelpful stance towards judicial assistance. In any event, Starski did not provide an apostille.

Because there was no apostille, the question was whether the document had a “final certification.” Final certification requires a certification by a diplomatic or consular officer of the United States or of the foreign country who is accredited to the United States. Starski failed to comply with this rule, even if the secretary of the Moscow court was an “authorized person” and the attestation therefore valid. Nor had Starski showed good cause for his failure to authenticate the document, so as to bring the document within the savings clauses of Rules 44 and 902. According to the judge, Starski claimed that he was “stymied in some fashion by Russian authorities,” but this was insufficient. (I wonder whether Starski attempted to obtain an apostille and failed? That seems unlikely given the text of the Convention, but who knows?)

This case emphasizes the importance of the Apostille Convention. Either Starski should have obtained an apostille, or he should have explained to the court why he was unable to obtain one (or to obtain final certification of the document).

One last point: I wonder whether the judge’s concern that the translation indicated the presence of a seal, but that the “original” document appeared to lack a seal, was the result of the federal courts’ electronic filing requirements. It’s hard to say, but perhaps Starski submitted a PDF of the document, as the court’s rules require, and the PDF did not show the presence of the seal. In such circumstances, maybe Starki should have filed the original of the document in hard copy, seeking leave of court if necessary.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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