The case of the day is In re Request for Judicial Assistance from the National Civil Court of First Instance No. 42 in Caba (N.D. Cal. 2024). Dario Hernan Raris brought a lawsuit in Argentina against Property Owners Association Uruguay 292, seeking damages caused by a water leak. The defendant allegedly had traded products on eBay, and the Argentine court sent a letter rogatory asking the US court to gather evidence from eBay for use in the Argentine case.

The case is, in a sense, routine. The US central authority did what it does in such cases and arranged for the Department of Justice to file an application under Section 1782 for leave to serve a subpoena on eBay. The court granted the motion, appointed the assistant US attorney as commissioner, and authorized service of the subpoena. Its decision runs through the Intel factors and concludes that the discretionary factors favor discovery.

That’s fine, but I want to ask why American courts think they have discretion in a case where a foreign court, in a state that is party to the Evidence Convention, requests aid under the Convention. After all, under Article 12 of the Convention, execution of a letter that meets the requirements of the Convention can be refused only if “in the State of execution the execution of the Letter does not fall within the functions of the judiciary,” or if “the State addressed considers that its sovereignty or security would be prejudiced thereby.”

Maybe you will point to Article 9. But that article only provides that the court “shall apply its own law as to the methods and procedures to be followed.” Whether to grant judicial assistance is not a question about methods and procedures. Maybe you will point to Article 10. That article provides that the court should decide on measures of compulsion under its own law. But it specifies that the court should look to the internal law that would apply to “requests made by parties in internal proceedings.” That means looking at FRCP 45, the rule that governs subpoenas in domestic cases, but not looking at Section 1782, which applies only to cross-border proceedings, not to internal proceedings.

For these reasons, I think it’s a mistake for courts to do an Intel analysis when the government seeks leave to issue a subpoena in response to a letter of request from a Convention state.

In practice, I don’t think this will make much difference to outcomes. When a foreign court sends a letter of request, then almost by definition the receptivity and non-circumvention factors in the Intel analysis will favor the 1782 application. The undue burden factor may or may not favor the application, but even in a domestic case governed only by FRCP 45, a court can quash a subpoena that is unduly burdensome.¹There is a procedural difference here: under Intel, a court can deny an ex parte application outright if the subpoena is unduly burdensome, while under FRCP 45, the burden is on the party that received the subpoena to argue undue burden. The only remaining Intel factor is the factor that asks whether the target of the discovery is a party to the foreign case. The gist of that factor is to ask whether the foreign court could simply order the target to provide the evidence, and if it could, then it’s pretty unlikely that the court would issue a letter of request in the first place.

Ordinarily I advise foreign litigants to bring a Section 1782 application rather than seeking evidence in the United States via the Evidence Convention. But the possibility that courts would agree with me that they lack jurisdiction to deny a Section 1782 application that meets the requirements of the statute in an Evidence Convention case is the one reason I know of (aside from cost) that it might make sense in a particular case to proceed by way of a letter of request. There would need to be some reason to think that a US court would exercise its discretion to deny the discovery (recall that Intel does not fully measure a court’s discretion).

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  There is a procedural difference here: under Intel, a court can deny an ex parte application outright if the subpoena is unduly burdensome, while under FRCP 45, the burden is on the party that received the subpoena to argue undue burden.