Case of the Day: In re Republic of Turkey
Posted on May 20, 2020
The case of the day is In re Republic of Turkey (D.N.J. 2020). The case presents one of the issues I’ve written about a few times as an academic curiosity, although neither the court nor the parties seem to have noticed it. The Turkish government sought discovery in the US in aid of an investment treaty arbitration to which it was a party.
So what is the issue? Let’s recall the text of § 1782:
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.
Turkey approached the court as an “interested person” entitled to apply for judicial assistance under § 1782. We know from Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), that the United States is not a “person” from whom discovery may be sought under § 1782, because the word “person,” when used in a statute, generally does not include a sovereign. Let’s assume that’s right. It seems to me that the word “person” has to mean the same thing every time it is used in a single statutory provision, and so if a sovereign cannot be a target of an application (because it is not a person) it cannot be an applicant (because it is not an interested person). The answer to this technical problem is to bring the application in the name of a government official, but Turkey didn’t do so here. So in my view the application should have been denied.
But no one noticed this issue, and the court denied the respondent’s motion to quash on grounds that I’m sure are interesting but that I’m not going to cover here.