Case of the Day: In re Application for an Order Pursuant to 28 U.S.C. § 1782
Posted on December 15, 2014
The case of the day is In re Application for an Order Pursuant to 28 U.S.C. § 1782 (2d Cir. 2014). This is the appeal from In re Application of Berlamont, the case of the day from August 21, 2014.
The appeal concerned a point that seemed so minor to me that I didn’t even address it in the prior post—does § 1782 permit issuance of a subpoena in aid of a foreign criminal investigation being conducted by a foreign investigating magistrate, in this case in Switzerland?
The answer is obvious. The statute provides: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” But because the question was one of first impression in the Second Circuit, the court provided a useful summary of the changes in the statute over time. At an early date the statute applied only to foreign actions for money damages; then to civil cases more generally; then to all cases in a foreign court; then to cases in a foreign or international tribunal. And to top it off, Congress made it clear that “criminal investigations conducted before formal accusation” is within the scope of the statute. A Swiss investigating magistrate, like a French juge d’instruction, is a paradigmatic example of a civil law investigating magistrate within the scope of the statute.