In re the Matter of The Search of The Premises Located At 840 140th Ave. Ne

• Citation: 634 F.3d 557
• Decision Date: 19 January 2011
• Docket Number: No. 09–35096.,09–35096.
• Parties: In re the Matter of the Search of the PREMISES LOCATED AT 840 140TH AVENUE NE, BELLEVUE, WASHINGTON,andIn re Request from the Russian Federation Pursuant to the Treaty Between the United States of America and the Russian Federation on Mutual Legal Assistance in Criminal Matters in the Matter of Arkadi A. Gontmakher.United States of America, Petitioner–Appellee,v.Global Fishing, Inc.; and Arkadi A. Gontmakher, Respondents–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

634 F.3d 557

11 Cal. Daily Op. Serv. 1555

2011 Daily Journal D.A.R. 1825

In re the Matter of the Search of the PREMISES LOCATED AT 840 140TH AVENUE NE, BELLEVUE, WASHINGTON,andIn re Request from the Russian Federation Pursuant to the Treaty Between the United States of America and the Russian Federation on Mutual Legal Assistance in Criminal Matters in the Matter of Arkadi A. Gontmakher.United States of America, Petitioner–Appellee,

v.Global Fishing, Inc.; and Arkadi A. Gontmakher, Respondents–Appellants.

No. 09–35096.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2010.Filed Jan. 19, 2011.

Angelo J. Calfo and Lyle A. Tenpenny, Yarmuth Wilsdon Calfo, PLLC, Irwin H. Schwartz, Law Offices of Irwin H. Schwartz, and David V. Marshall, Davis Wright Tremaine LLP, Seattle, WA, for the respondents–appellants.James D. Oesterle and Michael S. Morgan, Assistant United States Attorneys, Seattle, WA, for the petitioner–Appellee.Appeal from the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding. D.C. No. 08–CV–01402–JLR.Before: STEPHEN REINHARDT, SUSAN P. GRABER, and RICHARD A. PAEZ, Circuit Judges.

OPINION

GRABER, Circuit Judge:

The Russian government sought the aid of the United States government, pursuant to a bilateral treaty, in its criminal investigation and prosecution of Appellant Arkadi A. Gontmakher for illegal crabbing. The district court issued a subpoena for certain documents in the possession of Appellant Global Fishing, Inc. Appellants moved for a protective order that effectively would have quashed the subpoena, arguing that the Russian government's investigation and prosecution of Gontmakher were corrupt and illegal. The district court denied the motion, and we affirm.

FACTUAL AND PROCEDURAL HISTORY

Congress long ago authorized parties to request legal assistance from the federal courts in the collection of evidence for use in a foreign proceeding. Originally enacted in the mid–19th century, the statute now codified at 28 U.S.C. § 1782 permits federal courts to provide such assistance. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247–49, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (discussing the history of the statute at some length). Section 1782, in its current form, states:

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. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

28 U.S.C. § 1782(a).

To invoke § 1782 and obtain federal-court assistance, the requesting entity presents a written request known as a “letter rogatory” (or, if presented by an “interested person,” known as a “letter of request”) to the applicable federal district court. See generally In re Comm'r's Subpoenas, 325 F.3d 1287, 1290 (11th Cir.2003), abrogation in other part recognized by In re Clerici, 481 F.3d 1324, 1333 n. 12 (11th Cir.2007). As it works today, both foreign governments and private parties, including corporations and natural persons, can make requests for use in both underlying civil lawsuits and underlying criminal prosecutions. See, e.g., Intel, 542 U.S. at 246, 124 S.Ct. 2466 (request by private corporation for use in underlying civil lawsuit); In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d 686, 687 (D.C.Cir.1989) (request by foreign government for use in underlying criminal investigation).

Over the years, the courts have interpreted § 1782 as imposing certain absolute requirements on the request for assistance. For instance, courts interpreted an earlier version of the statute to require that the foreign nation be a party to the proceeding. Intel, 542 U.S. at 248, 124 S.Ct. 2466. In the 20th century, Congress amended the statute several times, each time removing more of the absolute restrictions on the courts' ability to provide assistance. See, e.g., id. at 247–48, 124 S.Ct. 2466 (“In 1948, Congress substantially broadened the scope of assistance federal courts could provide for foreign proceedings.”); United States v. Sealed 1, Letter of Request for Legal Assistance from Deputy Prosecutor Gen. of Russian Fed'n, 235 F.3d 1200, 1203–05 (9th Cir.2000) (discussing the broadening effect of the 1948, 1949, 1964, and 1996 amendments).

One of the important congressional purposes in broadening the scope of federal-court assistance was to encourage reciprocity by other nations. See, e.g., United Kingdom, 870 F.2d at 690 (“[T]he expectation or hope was that by making assistance generously available through the good offices of United States officials and courts, our country would set an example foreign courts and authorities could follow when asked to render aid to United States courts, authorities, and litigators.”); John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3d Cir.1985) (“ ‘It is hoped that the initiative taken by the United States in improving its procedures will invite foreign countries similarly to adjust their procedures.’ ” (quoting the Senate Report for the 1964 amendment)). By providing broad assistance to foreign nations and tribunals via § 1782, the United States encourages foreign nations and tribunals to do the same, which benefits the United States government.

The absolute requirements under § 1782 are only part of the story, however. The courts have stressed that, even if those requirements are met, a district court still retains the discretion to deny a request. See, e.g., Intel, 542 U.S. at 264, 124 S.Ct. 2466 (“As earlier emphasized, a district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so.” (citation omitted)). “Congress gave the federal district courts broad discretion to determine whether, and to what extent, to honor a request for assistance under 28 U.S.C. § 1782.” Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir.2002); accord In re Clerici, 481 F.3d at 1331; Edelman v. Taittinger (In re Edelman), 295 F.3d 171, 181 (2d Cir.2002); Al Fayed v. United States, 210 F.3d 421, 424 (4th Cir.2000). The courts have described a wide range of potentially applicable factors to consider in making that discretionary determination. See, e.g., In re Request for Assistance from Ministry of Legal Affairs of Trinidad & Tobago, 848 F.2d 1151, 1156 (11th Cir.1988) (holding that the district court should deny the request if the district court “suspects that the request is a ‘fishing expedition’ or a vehicle for harassment”), abrogated in other part by Intel, 542 U.S. at 259, 124 S.Ct. 2466. The Supreme Court has held that those factors include whether “the person from whom discovery is sought is a participant in the foreign proceeding”; “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”; whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and whether the request is “unduly intrusive or burdensome.” Intel, 542 U.S. at 264–65, 124 S.Ct. 2466.

In recent decades, the United States has ratified an increasing number of bilateral treaties with other nations to facilitate legal proceedings, known as mutual legal assistance treaties or MLATs. See, e.g., In re Comm'r's Subpoenas, 325 F.3d at 1290 (discussing an MLAT with Canada, ratified in 1989); United States v. Erato (In re Subpoena Issued to Erato), 2 F.3d 11 (2d Cir.1993) (discussing an MLAT with the Netherlands, signed in 1981); In re Request from Kasper–Ansermet, 132 F.R.D. 622 (D.N.J.1990) (discussing an MLAT with Switzerland, ratified in 1976).¹ As their names suggest, these treaties provide for bilateral, mutual assistance in the gathering of legal evidence for use by the requesting state in criminal investigations and proceedings. Viewed through the lens of reciprocity, MLATs represent a direct approach to achieving reciprocity with other nations, in addition to the indirect approach taken by congressional expansion of the scope of § 1782. The ratification of MLATs in recent decades can be seen as yet another step toward the goal of greater legal assistance by, and for, other nations, at least with respect to requests by foreign governments for use in underlying criminal investigations and proceedings.

At issue here is the MLAT between the United States and Russia, which entered into force after ratification by both parties in 2002. Treaty Between the United States of America and the Russian Federation on Mutual Legal Assistance in Criminal Matters (“US–Russia MLAT”), June 17, 1999, S. Treaty Doc. No. 106–22. In general, the treaty provides that,...