Case of the Day: In re Berlamont

The case of the day is In re Application of Berlamont (S.D.N.Y. 2014). Franck Berlamont applied for leave to serve a subpoena under § 1782 in order to obtain a transcript of testimony Rajiv Jaitly gave in a deposition in an earlier New York case, Rembaum v. Banco Santander. The deposition had, apparently, taken place in England pursuant to a letter rogatry from the New York court issued under the Hague Evidence Convention. The application was in aid of a Swiss criminal investigation into Manuel Echevarria, a former colleague of Jaitly in Optimal Investment Services. The judge allowed the application.

The materials were plainly “for use” in the Swiss investigation. Indeed, the Swiss prosecutor had stated that the documents would be “of great use for my inquiry.” The Intel factors were satisfied. While the letter rogatory had requested that “the confidentiality of any evidence produced be maintained pursuant to the laws of England,” the order of the English court contained no confidentiality requirements.

Perhaps the most interesting argument was that Article 1 of the Evidence Convention prohibits the use of the Convention to obtain evidence “not intended for use in judicial proceedings, commenced or contemplated.” The problem with this argument, of course, is that the Convention says nothing about what other uses can later be made of the evidence. We can compare Article 1 with, say, Article 7 of the US/UK MLAT, which provides that evidence obtained under the treaty cannot be used or disclosed for purposes other than the purpose for which it was obtained without consent. In the absence of such language, I think the judge was right to conclude that Article 1 posed no barrier to the application.

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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