BREAKING: First Circuit Rejects Moloney & McIntyre’s Challenges in the Belfast Project Case

This just in: the Court of Appeals for the First Circuit has affirmed the District Court’s decisions in the Belfast Project case. Barring a request for rehearing or en banc review or a petition to the Supreme Court, this clears the way for the government to enforce the subpoenas issued in the case and to deliver the interview materials to the UK authorities.

I will have a full analysis of the opinion early next week. At first glance, here is a summary:

  • As I predicted, the court rejected Moloney & McIntyre’s arguments under the MLAT, because the treaty gives them no private right of action and because the Attorney General’s actions under the MLAT are not within the courts’ jursidiction.
  • The court rejected Moloney & McIntyre’s claim under the Administrative Procedures Act on the grounds that the MLAT expressly precludes judicial review.
  • The court assumed for the sake of argument that the District Court had discretion to quash the subpoenas but held that it had not abused its discretion, noting that the judge had carefully performed a balancing analysis. This leaves open the question whether, as I have suggested, the district court lacks discretion to quash a subpoena issued under the MLAT.
  • The court rejected Moloney & McIntyre’s constitutional claims. In a small victory for M&M, the court held that they had standing to raise their constitutional arguments. 1 But as I suggested, the court held that on the merits, the Branzburg case controlled.
  • The court quoted Wigmore in support of the basic outcome: “the mere fact that a communication was made in expres confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”

More early next week!

Notes:

  1. The court took a pass on the question whether the doctrine of prudential standing could aid the government

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 2d ed. 2016), 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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