IN RE REQUEST FOR INTERN. JUDICIAL ASSISTANCE, Misc. No. M-13-72.

• Decision Date: 16 November 1988
• Docket Number: Misc. No. M-13-72.
• Citation: 700 F. Supp. 723
• Parties: In re REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER ROGATORY) FROM THE FEDERATIVE REPUBLIC OF BRAZIL.
• Court: U.S. District Court — Southern District of New York

700 F. Supp. 723

In re REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER ROGATORY) FROM THE FEDERATIVE REPUBLIC OF BRAZIL.

Misc. No. M-13-72.

United States District Court, S.D. New York.

November 16, 1988.

Engel & Mulholland, New York City, for petitioners Midland Trading Corp., Four Dimensions and Pendennis Corp.; Thomas E. Engel, of counsel.

Fox & Horan, New York City, for petitioners General Universal Trading Corp. and Dartois Investments, Inc.; Donald T. Fox, of counsel.

Rudolph W. Giuliani, U.S. Atty., D.N.Y., New York City, for U.S.; Nelson W. Cunningham, of counsel.

OPINION AFTER FURTHER AFFIDAVITS

HAIGHT, District Judge:

This case arises on a petition to quash a subpoena duces tecum under letters rogatory issued by a Brazilian court at the initial request of a Brazilian prosecutor. The governing statute is 28 U.S.C. § 1782. I addressed the petition in a Memorandum Opinion and Order dated June 8, 1988, 687 F.Supp. 880, familiarity with which is assumed. That opinion directed the parties to submit further affidavits on the two questions set forth in the margin.¹ Further submissions and briefs have been received, and the case is ripe for decision.

Petitioners' eminent experts urge the threshold point that Judge Pimentel, the Brazilian judge issuing the letters rogatory, lacked authority under Brazilian law to do so. Judge Pimentel's declarations make clear her own perception that she had the requisite authority. I decline, in this § 1782 context, to "decide technical questions of foreign law relating to the subject-matter jurisdiction of foreign tribunals," John Deere, Ltd. v. Sperry Corp., 754 F.2d 132, 136 (3rd Cir.1985). Such issues, together with the admissibility of the requested evidence in the foreign court, are generally regarded as beyond the appropriate competence of the court whose assistance is requested. See also In Re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1156 (11th Cir.1988). A different view is sometimes taken with respect to "whether the evidence would be discoverable in the foreign country before granting assistance," ibid.; but petitioners at bar do not suggest that the Brazilian authorities lack the power to obtain the bank records in suit if the bank was located in Brazil, rather than here.

Thus the case turns, as it has always done, upon whether the subpoenaed documents are, within the contemplation of § 1782, "for use in a proceeding in a foreign or international tribunal." I need not reiterate everything that was said in my prior opinion, which emphasized, naturally enough, the two Second Circuit opinions construing the statute: In Re Letters Rogatory Issued by the Director of Inspection of the Government of India, 385 F.2d 1017 (2d Cir.1967), and Fonseca v. Blumenthal, 620 F.2d 322 (2d Cir.1980). The most recent federal appellate decision is Trinidad and Tobago, supra, which the Eleventh Circuit decided on July 7, 1988.

As it happens, under date of June 21, 1988 I filed a Memorandum Opinion in In Re Letters Rogatory from the Public Prosecutor's Office at the Regional Port of Hamburg, Federal Republic of Germany, M-19-18 (S.D.N.Y.), granting the motion of the United States for reargument of a prior denial of an order appointing a commissioner under letters rogatory. In the Hamburg decision, I accepted the propositions that prosecutors in foreign countries were "interested persons" within the meaning of the statute; and that a proceeding in a foreign tribunal need not be actually pending at the time the request for judicial assistance was made. Slip op. at 4. I then said:

"Accordingly I conclude, while doing no violence to Second Circuit authority, that a letter rogatory generated by a prosecutor falls within the statute so long as the application demonstrates clearly that there will be a proceeding in a foreign tribunal, and that the evidence sought will be used in that proceeding."

In Trinidad and Tobago, the Eleventh Circuit, affirming the district court's grant of judicial assistance, reached the same conclusions. On the last point, the court said:

Congress has given the district courts a great responsibility to determine whether to grant judicial assistance in foreign litigation. To prevent abuse, the district judge should carefully examine and given thoughtful deliberation to any request for assistance submitted by an "interested person" before a judicial proceeding has begun. The district judge should satisfy himself that a proceeding is very likely to occur. If the judge doubts that a proceeding is forthcoming, or suspects that the request is a "fishing expedition" or a vehicle for harassment, the district court should deny the request. In this case the district court concluded that a proceeding was probable and properly assisted the Minister of Legal Affairs by ordering the production of the bank records.

848 F.2d at 1156.

The submissions of petitioners' experts demonstrate clearly enough that "Brazilian criminal procedure is divided into two phases, pre- and post-accusatory." Petitioners' Supplemental Reply Memorandum at 5. I further accept petitioners' contention, based upon the presentations of their experts, that "adjudicative judicial criminal proceedings begin in Brazil only after the defendant is made party to the action and both sides to the controversy are before the courts." Id. at 7. Lastly, I accept that in the case at bar, there is no "adjudicative judicial criminal proceeding" presently pending in Brazil in respect of petitioners. However, as this Court concluded in Hamburg, and the Eleventh Circuit concluded in Trinidad and Tobago, that is not dispositive.

Having considered the entire record,...