Belfast Project: The Government Files Its Brief

Boston College St. Ignatius GateThe government has now filed its brief in opposition to Boston College’s appeal. The basic argument is simple: the College’s appeal is foreclosed by the Court’s recent decision disposing of Moloney & McIntyre’s appeal:

Boston College’s argument is untenable after In re: Request, which squarely rejected the claim that First Circuit precedent addressing confidential academic information provides a basis for objecting to the disclosure of Belfast Project materials pursuant to the UK’s MLAT request. In re: Request acknowledged the prior cases Boston College cites as affording greater protections than Branzburg, but concluded that those cases arose in distinguishable circumstances, while this case is “closer to Branzburg itself.” Indeed, the Court noted that “[t]he law enforcement interest here—a criminal investigation by a foreign sovereign advanced through treaty obligations—is arguably even stronger than the government’s interest in Branzburg.” As a result, Branzburg controls. Applying the Branzburg analysis, the Court concluded that the interests that Moloney and McIntyre asserted in favor of protecting the Belfast Project material, including concerns of a “chilling effect” on academic research, potential “threat[s] [to] job security or personal safety,” and “dishonor or embarrassment,” had been considered and found “insufficient in Branzburg” and, as a result, “necessarily [were] insufficient here.”

There are two points worth special mention. First, the government makes it clear that it continues to take the position that the district court has no discretion to refuse to enforce a subpoena issued pursuant to an MLAT. That issue was not on appeal, since the government, satisfied with the outcome of the case in the district court, did not file an appeal. Second, the brief is redacted. An unredacted version, unavailable to the public, apparently discusses the scope of the UK criminal investigation that prompted the subpoenas in the first place, or more precisely the information regarding the scope of the UK investigation that Judge Young considered in camera. It would be interesting to know just what information the judge had.

Photo credit: Boston Starbucks Rebel

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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