28 U.S.C. § 1783 — Subpoena of person in foreign country

Page 458 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1783 son from voluntarily giving evidence for use in a for- eign or international tribunal, for provisions permit- ting depositions of witnesses within the United States for use in any court in a foreign country with which the United States was at peace to be taken before a person authorized to administer oaths designated by the dis- trict court of the district where the witness resides or is found, and directing that the procedure used be that generally used in courts of the United States, in text, and ‘‘Assistance to foreign and international tribunals and to litigants before such tribunals’’ for ‘‘Testimony for use in foreign countries’’ in section catchline. 1949—Act May 24, 1949, struck out ‘‘residing’’ after ‘‘witness’’, and substituted ‘‘judicial proceeding’’ for ‘‘civil action’’ after ‘‘to be used in any’’. § 1783. Subpoena of person in foreign country (a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or re- quiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his per- sonal appearance or to obtain the production of the document or other thing in any other man- ner. (b) The subpoena shall designate the time and place for the appearance or for the production of the document or other thing. Service of the sub- poena and any order to show cause, rule, judg- ment, or decree authorized by this section or by section 1784 of this title shall be effected in ac- cordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance ex- penses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena. (June 25, 1948, ch. 646, 62 Stat. 949; Pub. L. 88–619, § 10(a), Oct. 3, 1964, 78 Stat. 997.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 711, 712, and 713 (July 3, 1926, ch. 762, §§ 1–3, 44 Stat. 835). Word ‘‘resident’’ was substituted for ‘‘or domiciled therein.’’ (See reviser’s note under section 1391 of this title.) Words ‘‘or any assistant or district attorney acting under him,’’ after ‘‘Attorney General’’ in section 712 of title 28, U.S.C., 1940 ed., were omitted, since, in any event, the approval of the Attorney General would be required. (See section 507 of this title.) Changes were made in phraseology. Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b), are set out in the Appendix to this title. AMENDMENTS 1964—Pub. L. 88–619 amended section generally, and among other changes, authorized a United States court to issue a subpoena to require the appearance of a wit- ness before it or a person or body designated by it, and the production of documents or other tangible evi- dence, when necessary in the interest of justice, and in other than criminal actions or proceedings, if the court finds, in addition, that its not possible to obtain admis- sible evidence in any other manner, and provided that the procedure relating to the subpoena shall be in ac- cordance with the Federal Rules of Civil Procedure, and struck out provisions which authorized the issuance of a subpoena when a personally notified indi- vidual failed to appear to testify pursuant to letter rog- atory, or failed to answer any question he would have to answer in any examination before the court or if such person was beyond United States jurisdiction and the testimony was desired by the Attorney General in a criminal proceeding, provided that the subpoena issue to any United States consul, that the consul make per- sonal service of the subpoena and of any order, rule, judgment or decree, that he make return of the sub- poena and tender expenses to the witness, and sub- stituted ‘‘person’’ for ‘‘witness’’ in section catchline. § 1784. Contempt (a) The court of the United States which has issued a subpoena served in a foreign country may order the person who has failed to appear or who has failed to produce a document or other thing as directed therein to show cause before it at a designated time why he should not be pun- ished for contempt. (b) The court, in the order to show cause, may direct that any of the person’s property within the United States be levied upon or seized, in the manner provided by law or court rules gov- erning levy or seizure under execution, and held to satisfy any judgment that may be rendered against him pursuant to subsection (d) of this section if adequate security, in such amount as the court may direct in the order, be given for any damage that he might suffer should he not be found in contempt. Security under this sub- section may not be required of the United States. (c) A copy of the order to show cause shall be served on the person in accordance with section 1783(b) of this title. (d) On the return day of the order to show cause or any later day to which the hearing may be continued, proof shall be taken. If the person is found in contempt, the court, notwith- standing any limitation upon its power gen- erally to punish for contempt, may fine him not more than $100,000 and direct that the fine and costs of the proceedings be satisfied by a sale of the property levied upon or seized, conducted upon the notice required and in the manner pro- vided for sales upon execution. (June 25, 1948, ch. 646, 62 Stat. 949; Pub. L. 88–619, § 11, Oct. 3, 1964, 78 Stat. 998.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 714, 715, 716, 717, and 718 (July 3, 1926, ch. 762, §§ 4–8, 44 Stat. 836). Sections 714–718 of title 28, U.S.C., 1940 ed., were con- solidated, since all relate to contempt by a witness served personally in a foreign country. The last sentence omits specific reference to section 118 of title 28, U.S.C., 1940 ed., now incorporated in sec- tion 1655 of this title, which provides for the method of opening judgments rendered on publication of process. (See also Rule 60(b) of the Federal Rules of Civil Proce- dure.) Changes were made in phraseology.