Case of the Day: In re Request for International Judicial Assistance from the Court of First Instance of Macau
Posted on February 28, 2019
The case of the day is In re Request for International Judicial Assistance from the Court of First Instance of the Special Administrative Region of Macau, 2nd Civil Court (N.D. Cal. 2019). A court in Macau made a request to the US Central Authority under the Hague Evidence Convention, seeking aid in obtaining answers to interrogatories from Phillip J. Ferraro. Mr. Ferraro refused to answer the questions voluntarily, and so the government brought an application under § 1782.
In an interesting, and I think erroneous, decision, the court held that the application failed to satisfy the statutory requirements under § 1782, because the statute does not permit the use of interrogatories as a discovery method. 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. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
Leaving aside a bald appeal to precedent—there are apparently a few decisions that reach the same conclusion as the magistrate judge reached here—why would anyone think that interrogatories are improper under § 1782? There is no question that a deposition on written questions is proper under the statute, and there is little practical difference between the two methods. The main difference in practice is that in a deposition on written questions, there is a procedure under FRCP 31 for the other parties in the case to ask their own questions, which the deponent must also answer in writing. With interrogatories, on the other hand, the witness answers only the interrogatories, without an opportunity for other parties to ask their own questions. There is a second difference, too: interrogatories are asked in writing and answered in writing under oath, while in a deposition on written questions the questions are asked in writing but answered orally under oath, with the answers transcribed. In domestic litigation, there is a third difference, too: interrogatories can only be addressed to another party, while a deposition on written questions can be taken of another party or a non-party. But none of these differences suggest to me any reason to conclude that a court shouldn’t authorize interrogatories as readily as it might authorize a deposition on written questions.
The statute allows a court to order a person to give “testimony” or a “statement.” Assuming that a “statement” means something different from “testimony,” and that a deposition, whether on oral questions or written questions, results in “testimony,” why should we not say that answers to written interrogatories are a person’s “statement?” And if the foreign court seeks answers to interrogatories, why should a US court insist on some different procedure, given that the statute provides that the procedure “may be in whole or part the practice and procedure of the foreign country?”
I leave aside a separate question here, namely, whether, once the US has decided that a request under the Evidence Convention should be executed, it is consistent with the United State’s international responsibilities to refuse to execute the request on such technical grounds. It would be one thing if, on a motion to quash, the court determined that the request was unduly burdensome or something.
In short, the decision seems erroneous, and I hope it is not followed.