§ 1782 Allows Foreign Criminal Complainant to Obtain Documentary Discovery in the United States for Foreign Criminal Investigation Involved an Investigating Magistrate

In re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 2014 U.S. App. LEXIS 23492 (2d Cir. Dec. 12, 2014):

The question presented is one of first impression2 in this Court--whether 28 U.S.C. § 1782, which authorizes federal courts to order document production for use in certain foreign proceedings, permits discovery for use in a foreign criminal investigation conducted by a foreign investigating magistrate.3

2   Section 1782 of Title 28 reads, in relevant part, as follows:

   The district court of the district in [*3]  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.

28 U.S.C. § 1782(a).

While we have analyzed § 1782's applicability to numerous different types of foreign proceedings, we have yet to rule squarely on the statute's applicability to a foreign criminal investigation conducted by a foreign investigating magistrate. See, e.g., In re Letters Rogatory Issued by Dir. of Inspection of Gov't of India, 385 F.2d 1017 (2d Cir. 1967) (holding § 1782 inapplicable to discovery requested by an Indian income-tax officer).

3   Although the record is sparse as to the specific institutional responsibilities of the Swiss investigating official, we adopt the terminology of the District Court, which referred to him as an "investigating magistrate." In re Application of Franck Berlamont for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, No. 14 Misc. 190, 2014 WL 3893953, at *1 (S.D.N.Y. Aug. 4, 2014). The investigating magistrate is a prominent feature of the European inquisitorial system. See generally Morris Ploscowe, The Investigating Magistrate (Juge D'Instruction) In European Criminal Procedure, 33 Mich. L. Rev. 1010, 1010 (1935) ("On the Continent all the functions which American [*4]  law entrusts to police, prosecutors, coroners, grand jury, committing magistrate and defense attorney are concentrated in the hands of the [investigating magistrate].").

Franck Berlamont ("Berlamont"), a Swiss criminal complainant, seeks from appellants the production of documents relating to the examination of Rajiv Jaitly ("Jaitly Documents") to provide to a Swiss investigating magistrate overseeing a criminal inquiry related to a Bernard Madoff "feeder fund" in Switzerland. The Jaitly Documents were part of the discovery obtained in a case formerly pending before the United States District Court for the Southern District of New York, Rembaum v. Banco Santander, S.A., No. 10 Civ. 4095 (S.D.N.Y.). The District Court (Paul G. Gardephe, Judge) ordered discovery pursuant to 28 U.S.C. § 1782, which permits federal courts to order document production "for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." After Berlamont's ex parte § 1782 application was granted, appellants moved to vacate the order and quash the subpoena or, in the alternative, for a protective order. The District Court (Jed S. Rakoff, Judge) denied the motions. [*5]

We hold, based on the plain reading of § 1782, as well the law's legislative history, that the statute applies to a foreign criminal investigation involving an investigating magistrate seeking documents in the United States.

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