In re Application of Kegel

The case is In re Application of Kegel (D.N.D. 2014). Adam Kegel was the plaintiff in a class action pending in Montreal, Kegel v. National Bank of Canada. He made an application to the district court in North Dakota under § 1782 for a subpoena to Joseph Kostelecky. The court granted the application, and Kegel apparently obtained the evidence he sought from Kostelecky. Kegel then sought an order declaring that nothing in the court’s prior order or US law would prohibit him from using the evidence in another Canadian case, Goldsmith v. National Bank of Canada, which was an Ontario case that paralleled the Québec case.

The judge declined to give the order Kegel sought for several reasons. First, the original order stated that Kegel was authorized to issue the subpoena “in connection with Adam Kegel v. National Bank of Canada, and the subpoena itself stated that its purpose was discovery for use in the Montreal action. Second, the affidavit of counsel Kegel submitted in report of the action stated that the evidence would “only be used in the Quebec Action, and in no other proceeding, unless that evidence is obtained through other means.” Third, the court held that it lacked subject matter jurisdiction once it had granted the original application and Kegel had obtained the evidence he had sought. Fourth, it was not clear that Kegel was a real party in interest, because it did not appear that he was a party to the Ontario action.

I agree with much of this. I think the affidavit of counsel affirmatively representing that the evidence would not be used in any other action weighs heavily against the order sought, and I agree that it was unclear why Kegel either had standing to seek the order or was a real party in interest given that he did not seem to be a party in the Ontario case.

But suppose Kegel’s counsel had not made the representation about use of the evidence in other cases, and suppose Kegel was clearly a party in the second lawsuit, the lawsuit in which he wanted to be able to use the evidence. I don’t see any reason in US law why the person who obtains evidence for use in one proceeding can’t make use of it in another. Leave § 1782 aside for a moment. If I serve a subpoena in an ordinary domestic case and I obtain evidence (documents or testimony or whatever), ordinarily I can use the evidence for any purpose I want. If the party providing the evidence has a concern about that, it can seek a protective order before responding to the subpoena. If there is a protective order in place, then it seems to me it is proper for a party to ask the US court to construe the order, either in a contempt proceeding or else, perhaps, in a request for construction of the order prior to disobeying it. But if there is no protective order in place, then it seems to me that the party seeking construction of the original order granting leave to serve the subpoena under § 1782 is seeking an impermissible advisory opinion.

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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