Case of the Day: In re Request for International Judicial Assistance

The case of the day is In re Request for International Judicial Assistance from the Sixteenth Family Court of the Supreme Court of Justice of the Federal District (N.D. Cal. 2014). In connection with divorce proceedings in Mexico, a Mexican family court sent a letter rogatory, apparently through the diplomatic channel, to the United States seeking relevant bank records from a Bank of America branch in San Francisco.

The US Attorney brought an ex parte application under § 1782, which the court granted without much fuss. The only reason I bring the case up is that in light of a foreign litigant’s ability to seek evidence in the United States directly under § 1782, and (in the criminal context) in light of the use of MLATs, it seems less and less usual to see an actual letter rogatory directed into the United States. If you’re curious about what an example from Mexico looks like, check out the exhibits to the government’s submission.

3 responses to “Case of the Day: In re Request for International Judicial Assistance”

  1. Eddie Varon Levy

    Hi Ted. I write this comment because not only I know one of the parties in this case (as she is a public figure in Mexico), but rather, as you stated, I believe there is an issue that at least for me, breaks new ground. As a former Assistant Attorney General for International Affairs in Mexico, I wonder how can it be that, although any private party may invoke § 1782 in order to obtain discovery in the United States, (and as many times as I have done it), but now, it is not a private lawyer doing it, but the United States Attorney´s Office? This is, since when does the United States Attorney´s Office gets involved in a private family law foreign discovery dispute? I believe that probably because there was a basic “Letter Rogatory” from the court in Mexico which went through “Central authority” and Diplomatic Channels”, therefore, it was then referred to the US Attorney for the Northern District. Needless to say, I consider this issue of UTMOST importance. I shall investigate and find out for our readers. Thank you.

    1. Eddie, thank you for the comment. I believe the answer to your question is as you say: when a foreign court sends a letter rogatory, the US Attorney’s office will often act on the foreign court’s behalf to take the evidence. The reason, I think, is that unlike courts in civil law jurisdictions, our courts are adversarial, not inquisitorial, and are not really suited to taking the evidence themselves.

      There are advantages and disadvantages for foreign litigants to proceeding by letter rogatory rather than by proceeding directly under § 1782. One advantage of using a letter rogatory is that you eliminate any question about the foreign court’s receptivity to the evidence collected in the United States, or about whether you are attempting to circumvent foreign proof-gathering mechanisms.

      The main disadvantages, it seems to me, are loss of time and loss of control. In the case of the day, it appears that the Mexican court decided to issue the letter rogatory on September 5, 2013, and after legalization, the case was filed with the US court on March 13, 2014, more than six months later. Presumably there were some proceedings in the Mexican court prior to September 5, 2013 that led up to the issuance of the letter rogatory. If the party seeking the discovery had filed an ex parte application with the US court in early September 2013, it likely would have been where it is now by mid-September 2013. So in cases where you want evidence relatively quickly, letters rogatory are problematic.

      When you proceed by letter rogatory, if you let the US government handle the application, you are also giving up the power to present the issues to the US court in the light you want them presented. In a routine case (as this one appears to be) that may not be an issue, but it could be important in a case where you reasonably would expect contested proceedings in the US (e.g., cases seeking highly confidential documents or trade secrets—we could think of other examples too).

  2. One other point about this case: Why do we see a traditional letter rogatory rather than a letter of request under the Hague Evidence Convention? I’m not sure, but perhaps there was an issue regarding the classification of a divorce cases as “civil or commercial” under Mexican law?

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