International & Commercial Litigation
The US Courts – A Welcome Recognition of Territorial Limits of Jurisdiction
Obtaining Evidence from Foreign Countries
Steven Loble has acted in a large number of cases involving obtaining evidence in England for use in proceedings in the United States of America, as well as enforcement of judgments. He has undertaken cases in this area throughout his career. This experience provides first handknowledge of how the law and procedure works in practice and enables us to meet clients' needs insecuring testimony and documents for use at trial in foreign countries, particularly in the United States.
It also enables us to assist clients who have been served with an Order to give evidence for foreign pleadings, if it appears that the Order should not have been made or if the Order is too wide. In such cases, we can apply for the Order to be set aside or modified to deal with the client's concerns.
2. Microsoft Corporation v United States of America
The United States Court of Appeals for the Second Circuit recently refused an application for an en banc hearing In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation – Microsoft Corporation v United States of America.
Microsoft Corporation had appealed from orders of the United States District Court for the Southern District of New York denying its motion to quash a warrant (“Warrant”) issued under § 2703 of the Stored Communications Act (“SCA” or the “Act”), 18 U.S.C. §§ 2701 et seq., and holding Microsoft in contempt of court for refusing to execute the Warrant on the government's behalf. The Warrant directed Microsoft to seize and produce the contents of an e‐mail account thatit maintains for a customer who uses the company's electronic communications services. A UnitedStates magistrate judge (Francis, M.J.) issued the Warrant on the government's application, having found probable cause to believe that the account was being used in furtherance of narcotics trafficking. The Warrant was then served on Microsoft at its headquarters in Redmond, Washington. Microsoft produced its customer's non‐content information to the government, as directed. That data was stored in the United States. Microsoft ascertained that, to comply fully with the Warrant, it wouldneed to access customer content that it stores and maintains in Ireland and to import that data into the United States for delivery to federal authorities. It declined to do so. Instead, it moved toquash the Warrant. The magistrate judge, affirmed by the District Court (Preska, C.J.), denied the motion to quash and, in due course, the District Court held Microsoft in civil contempt for its failure.
Microsoft relied on the territorial nature of a “warrant”. The US Government sought to characterise the dispute as being about “compelled disclosure”.
As a non-US lawyer, the policy issues relating to territoriality are stark. Do countries other than the USA want their citizens to be subject to compulsion to hand over documents pursuant to a US court order. As a corollary, would the United States agree to enforce such orders from foreign courts?
There are Mutual Assistance Treaties to assist in obtaining evidence from other countries for use in criminal proceedings, and such a treaty exists between the United States and the Republic of Ireland. The Government wanted to short-circuit the process, as it took too long – although it would have taken less time than litigation and appeals.
In its decision, the Second Circuit stated,
“When interpreting the laws of the United States, we presume that legislation of Congress “is meant to apply only within the territorial jurisdiction of the United States,” unless a contrary intent clearly appears. … This presumption rests on the perception that “Congress ordinarily legislates with respect to domestic, not foreign matters.” … The presumption reflects thatCongress, ratherthan the courts, has the “facilities necessary” to make policy decisions in the “delicate field of international relations… In line with this recognition, the presumption is applied to protect against “unintended clashes between our laws and those of other nations which could result in international discord.””
The court referred to the presumption against extraterritoriality which the Supreme Court re‐stated and emphasised in Morrison v. National Australian Bank Ltd., 561 U.S. 247 (2010). Morrison was a civil not a criminal action.
As an English lawyer the artificial distinction argued in the US Court of Appeals for the Second Circuit between a warrant and a subpoena seems irrelevant. To me, the issue is the attempted extraterritorial application of the powers of a US Court.
The decision of the Second Circuit is a welcome recognition of the territorial boundaries of a state's law enforcement powers. Given that there is an agreement in place with the Republic of Ireland, which had publicly stated that it would assist the US Government if an application were made using the appropriate mechanism, undue fears about the ability of law enforcement agencies to exercise their functions were overblown.
In relation to civil proceedings there is a very effective mechanism to obtain evidence in England for use in US Courts.
With the new US President and his apparent disregard for the rule of law, it will be interesting to see how far he is able to push the US courts in relation to what he has termed as “bad dudes”.
3. PRACTICAL MATTERS
Before embarking on any exercise to obtain evidence (take depositions) in England, please call us to discuss the matter.
Similarly, if you or your clients are the recipient of an Order, we can advise on whether there are realistic prospects of challenging the Order or modifying it to deal with concerns raised by the Order. There is a 7-day time limit from date of service for applying to set aside such an Order, so it is important that you contact us immediately if you wish to consider applying to set aside or modify the Order.
We will work with US attorneys to ensure that the Letter of Request, or Letters Rogatory, will comply with the requirements of English law and procedure, to ensure that the substance of the request is acceptable to the English Court and that the request as a whole, and particularly document requests, is in a form, that does not infringe any of the requirements set out above.
We will work within whatever time constraints there are, but it is advisable,when seeking to take depositions or obtain documents from witnesses in England, to allow a reasonable amount of time to draft the request, ensure that it comports with the English requirements, obtain an Order from the English Court, serve the Order personally on the witnesses (and, if necessary, deal with any request to set aside the Order).
With the right preparation and advice, the whole process should be smoother than rushing at the last minute to beat a deadline and ensuring that the request is made in a manner which is acceptable to the requesting court (in the United States) and the English Court, which willendeavour to assist the US Court if it possibly can.
"It must be remembered that it is the duty and pleasure of the English Court to respondpositively to a letter of request if it can. It is also in the public interest thata court (on either side of the Atlantic) should have all relevant material available to it when it decides a case."
United States of America v. Philip Morris and Others.
For more general information, please see Depositions.