The case of the day is Eletson Holdings Inc. v. Levona Holdings Ltd. (S.D.N.Y. 2025). Eletson sought confirmation of an arbitral award. Levona sought to have the award set aside, on the grounds that, according to Levona, documents Eletson had not produced in the arbitration but had produced in a later bankruptcy proceeding showed that Eletson had offered fraudulent testimony in the arbitration. Intervenors in the case sought leave under 28 U.S.C. § 1783 to serve a subpoena on Peter Kanelos, a US citizen or resident who was in Greece, who was a participant in the communications that had been produced in the bankruptcy.

Section 1783 is (at least in my experience) rarely used. The statute provides:

A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.

The first question I ask lawyers who call me for help obtaining evidence abroad is: is the target a US national or resident?¹ Usually the answer is no. Sometimes it is yes, and then we have to consider whether it makes sense to use the statute. The answer is usually “no,” because many US nationals live abroad and do not return to the US regularly. In such cases, the subpoena (which the US court cannot enforce abroad) carries little oomph, and it is not practical or cost-effective to try to monitor the witness’s travel for purposes of bringing contempt proceedings. I say the answer is usually “no.” In fact, I do not think I have ever seen a case where I recommended using the statue. But as today’s case shows, sometimes people try.

The statute has three requirements. First, the witness has to be a US national or resident. Second, the subpoena has to be necessary in the interests of justice (this is traditional language from traditional letters rogatory). Third, there must be no other way to obtain the evidence in a form admissible at trial.²

The judge reviewed the sparse precedent on the statute. “Necessary in the interests of justice,” he wrote, is a squishy analysis that looks at the totality of the circumstances. He held that the evidence was necessary in the interests of justice, for reasons that I am not going to focus on here. The key, though, was whether the intervenors had shown that there was no other way to obtain the evidence. The problem is that Greece is a party to the Evidence Convention. On this point, the intervenors say that pursuing that route would take longer than the case schedule permits. I question whether proceedings under § 1783 would, in practice, lead to obtaining the evidence any quicker. But the intervenors had sought to issue other letters of request under the Convention in the case, which the judge thought undercut their argument. The judge also pointed out that the intervenors had not shown any efforts to obtain Kanelos’s evidence without compulsion, either in Greece or elsewhere. Note that Greece has not objected to the non-compulsory methods of Chapter 2 of the Convention (for our purposes, notably, depositions by a commissioner and consular depositions). To the contrary, Greece has declared, under Article 18, that commissioners etc. can apply for compulsory aid under Greek law.

Let me add one procedural wrinkle about § 1783. The statute requires that the subpoena be served under FRCP 4, and the Service Convention requires that it be served by a method authorized or permitted under the Convention (because the subpoena is a judicial document). Greece does not permit service by alternate means under the Convention, and so even if FRCP 4 permits service by post in the circumstances, the intervenors would have to request that the Greek central authority serve the subpoena. Again, I question whether any of this is faster than making a request under the Evidence Convention.

1. Actually, that’s the second question. The first question is: have you exhausted efforts to obtain the evidence via ordinary US discovery methods? Even when the target is not a party to the litigation, there are many cases in which the evidence is within the control, if not the possession, of a party. For example, the foreign target may be a professional advisor to the party, or may have some commercial relationship in which the party has a right to obtain information from it. It is always a good idea to consider this possibility, even if it means you will not then have the occasion to consult with me! Of course, the foreign law/Aérospatiale issue can arise, in which case you might need my advice after all. ↩︎
2. For my civil law readers: this is mostly a reference to the common law rule against hearsay, which we still use in the United States, though I understand that in England, hearsay is generally admissible in civil cases. Gasp! The idea is that you shouldn’t accept evidence of what someone asserted as the truth unless the person who made the assertion is present in court, so that the jury can judge his or her credibility and so that he or she can be cross-examined. ↩︎