Case of the Day: In re Application for an Order Pursuant to 28 U.S.C. § 1782

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.

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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