A while back I wrote about the United Company Rusal v. Trafigura case, the only case I know of with a really serious discussion of why the district courts have subject-matter jurisdiction over applications for judicial assistance. I threatened promised to come back to the jurisdictional question as time permitted. As a first step, I think it’s useful to consider the origins of judicial assistance in Anglo-American law. So consider yourself warned.

At common law, parties generally weren’t entitled to pretrial discovery. But this often left plaintiffs without an effective remedy in cases where the key testimony belonged to a witness abroad. The Court of Chancery developed a remedy: the bill of discovery seeking a commission to take a deposition abroad.

The bill was proper only where the underlying action was already pending, or as an old equity treatise puts it: “If a bill praying a commission does not allege that an action has been brought, it is demurrable.” 1 John Sidney Smith, Treatise on the Practice of the Court of Chancery 500 (2d Am. ed. 1842). And the plaintiff in the Chancery proceeding—the party seeking the discovery—had to name as defendant the other party in the law proceeding. So for example, if A sued B at law for breach of contract, and A sought testimony from C to prove his case, A would sue B in the Court of Chancery and ask for a commission to take C’s deposition. The Chancery would typically stay the action in the law court pending the discovery. The bill could not seek any relief (with minor exceptions) other than the discovery itself.

Much of this wonderful rigmarole was brought to an end by a statute that enabled litigants in the law courts to obtain discovery. 1 W. 4 c. 22. And from a very early date it seems that the procedure was not in use in the United States, because commissions were available by statute. Smith at 500 n.[b].

Why is this trivia about Chancery procedure relevant to the courts’ jurisdiction over requests for judicial assistance? Remember that in the United Company Rusal case, the court held that it had jurisdiction because the dispute before it because the dispute arose under federal law, namely under the judicial assistance statute itself. I didn’t find this particularly compelling, because it didn’t account fully for the fact that courts are held to lack jurisdiction over petitions to confirm arbitral awards, which arise under § 9 of the FAA, a statute that, like the judicial assistance statute, does not expressly vest jurisdiction in the district court. I concluded nonetheless that Congress must have intended to create jurisdiction under the judicial assistance statute, because the statute expressly names foreign proceedings over which the US courts could not conceivably have jurisdiction, in particular, foreign criminal investigations before formal charges. I think the Chancery practice shows that historically, requests for judicial assistance were treated, formally at least, as disputes in their own right that were within the jurisdiction of the Chancery even though, almost by definition, the Chancery could not have heard or decided the common law disputes in which one party or the other sought discovery (since otherwise they would have been equity cases pending in the Chancery rather than the law courts in the first place). In other words, the example of the bill of discovery in the Chancery Court shows that it was not necessary, historically, that the court being asked to order discovery be competent to decide the underlying dispute.

I’m not sure how persuasive this is, but it’s interesting anyway. Or so I allege.