News
& trends
Discovery
subpoena to foreign witness is valid, Second Circuit rules
A witness in foreign
litigation may be served with a subpoena by a U.S. court while physically
present in the court's jurisdiction, the Second Circuit Court of Appeals
has ruled. The witness, a French citizen, was in his home country
when the discovery order was issued. He was served with the subpoena
while visiting New York City.
In
a case of first impression among federal appellate courts, the Second
Circuit broadly interpreted the federal statute that allows discovery
for foreign litigation, holding that "a person who lives and works
in a foreign country is not necessarily beyond the reach of [28 U.S.C.]
§1782(a) simply because the district judge signed the discovery order
at a time when that prospective deponent was not physically present
in the district." (In re Application of Asher B. Edelman, 295
F.3d 171 (2d Cir. 2002).)
Mark
Cohen of New York—whose firm, Arkin Kaplan & Cohen, represents
the party requesting the discovery order—said the ruling is important
because it tells foreign litigants, "If you are in foreign litigation,
but you have some sort of nexus to New York or another state, then
litigants can and should be able to access you to get discovery."
The
ruling stems from litigation in France involving Société du Louvre
(SDL), a French corporation, and Asher Edelman and five investment
funds that he controls. SDL sued Edelman in France, claiming that
he wrongfully manipulated the market for the company's securities
by making purchase offers for the company that he never intended to
complete. Edelman countersued, alleging that a member of SDL's board
of directors, Claude Taittinger, mismanaged the company for his own
benefit.
SDL
filed subpoena requests in U.S. federal court for discovery and subsequently
obtained documents from Edelman and his companies. Edelman responded
by filing subpoena requests of his own. When the court granted the
discovery requests, Taittinger was in France. However, three days
later, while visiting New York, he was served with the subpoena for
deposition testimony and discovery of documents.
After
returning to France, Taittinger moved to quash the subpoena, contending
that he was not "found" in the court's jurisdiction. The trial court
agreed, but the Second Circuit vacated the ruling, holding that such
a strict interpretation of the statute would create cumbersome procedural
barriers to parties in foreign litigation.
The
circuit court also remanded to the trial court Taittinger's claim
that he could not be compelled to travel more than 100 miles from
his residence to be deposed.
Cohen
said the court was concerned about fairness. SDL had requested and
received discovery orders against Edelman in the same court under
the same statute.
"When
it was advantageous to [SDL], they were aggressive in their reading
of the statute," he said, "and when it was disadvantageous, they were
trying to keep us from doing essentially the very same thing."
—Sara
Hoffman Jurand
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