Case of the Day: In re Request for Judicial Assistance from the First Instance Court in Civil and Commercial Matters

The case of the day is In re Request for Judicial Assistance from the First Instance Court in Civil and Commercial Matters No. 12 in Buenos Aires, Argentina (M.D. Fla. 2019). An Argentine court requested judicial assistance from the United States under the Hague Evidence Convention in order to obtain bank account statements for a particular bank account and information about a particular wire transfer. The government decided to execute the request and brought an application under § 1782 for appointment of a commissioner to take the evidence from Merrill Lynch, the bank in question.

The case is interesting because of the Right to Financial Privacy Act, 12 U.S.C. § 3402, which provides:

[N]o Government authority may have access to or obtain copies of, or [sic] the information contained in the financial records of any customer from a financial institution unless … such customer has authorized such disclosure … [or] such financial records are disclosed in response to a judicial subpoena which meets the requirements of … this title.

Under the statute, a “government authority” is “any agency or department of the United States, or any officer, employee, or agent thereof.” The Second Circuit has held that the RFPA does not apply to commissioners appointed under § 1782. Young v. U.S. Dep’t of Justice, 882 F.2d 633 (2d Cir. 1989). But the Eleventh circuit has not yet ruled on the question. The District Court found the decision in Young persuasive, and followed it. In particular, the judge summarized Young’s reasoning as follows:

(1) In enacting the RFPA, Congress intended to “regulate the release of customer information from financial institutions in circumstances where adequate controls did not already exist,” and requests from foreign courts are subject to judicial review before they are executed; (2) it would be contrary to Congress’s goal of fostering reciprocal cooperation with foreign governments; (3) it would provide no additional protection because the RFPA would not prevent a private commissioner from obtaining the information; and (4) it would not increase the potential for government abuse because “a representative may apply for a commission only upon the request of a foreign party, and then only when the requesting party can adequately establish that the evidence sought will be used in a foreign tribunal.

To these reasons I would add that any “interested person” can obtain discovery under § 1782 without resorting to the Convention, and there is no commissioner appointed when a private litigant makes use of the statute. There is no reason why a party that makes use of the Convention should be worse off than a party that files its own application for discovery. But perhaps this is a restatement of the third reason given.

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