28 U.S.C. § 1781 — Transmittal of letter rogatory or request

Page 456 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1781 Sec. 1785. Subpoenas in multiparty, multiforum ac- tions. Editorial Notes AMENDMENTS 2002—Pub. L. 107–273, div. C, title I, § 11020(b)(4)(B)(ii), Nov. 2, 2002, 116 Stat. 1829, added item 1785. 1964—Pub. L. 88–619, §§ 8(b), 9(b), 10(b), 12(b), Oct. 3, 1964, 78 Stat. 997, 998, substituted ‘‘Transmittal of letter rogatory or request’’ for ‘‘Foreign witnesses’’ in item 1781, ‘‘Assistance to foreign and international tribunals and to litigants before such tribunals’’ for ‘‘Testimony for use in foreign countries’’ in item 1782, ‘‘person’’ for ‘‘witness’’ in item 1783, and struck out item 1785 ‘‘Privi- lege against incrimination’’. Statutory Notes and Related Subsidiaries DEPOSITIONS IN ADMIRALTY CASES Prior to the general unification of civil and admi- ralty procedure and the recision of the Admiralty Rules on July 1, 1966, Revised Statutes §§ 863 to 865, as amend- ed, which related to depositions de bene esse, when and how taken, notice, mode of taking, and transmission to court, provided as follows: ‘‘SEC. 863. The testimony of any witness may be taken in any civil cause depending in a district court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hun- dred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any clerk of a district court, or any chancellor, justice, or judge of a supreme or su- perior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor inter- ested in the event of the cause. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be near- est, which notice shall state the name of the witness and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in; and whenever, by reason of the ab- sence from the district and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such district shall think reasonable and direct. Any person may be compelled to appear and de- pose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court. ‘‘SEC. 864. Every person deposing as provided in the preceding section [R.S. § 863] shall be cautioned and sworn to testify the whole truth, and carefully exam- ined. ‘‘His testimony shall be reduced to writing or type- writing by the officer taking the deposition, or by some person under his personal supervision, or by the depo- nent himself in the officer’s presence, and by no other person, and shall, after it has been reduced to writing or typewriting, be subscribed by the deponent. [As amended May 23, 1900, ch. 541, 31 Stat. 182.] ‘‘SEC. 865. Every deposition taken under the two pre- ceding sections [R.S. §§ 863, 864] shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken; or it shall, to- gether with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprison- ment, he is unable to travel and appear at court, such deposition shall not be used in the cause.’’ R.S. §§ 863 to 865, as amended, quoted above, were ap- plicable to admiralty proceedings only. Proceedings in bankruptcy and copyright are governed by rule 26 et seq. of Federal Rules of Civil Procedure. See also Rules of Bankruptcy Procedure set out in the Appendix to Title 11, Bankruptcy. § 1781. Transmittal of letter rogatory or request (a) The Department of State has power, di- rectly, or through suitable channels— (1) to receive a letter rogatory issued, or re- quest made, by a foreign or international tri- bunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution; and (2) to receive a letter rogatory issued, or re- quest made, by a tribunal in the United States, to transmit it to the foreign or inter- national tribunal, officer, or agency to whom it is addressed, and to receive and return it after execution. (b) This section does not preclude— (1) the transmittal of a letter rogatory or re- quest directly from a foreign or international tribunal to the tribunal, officer, or agency in the United States to whom it is addressed and its return in the same manner; or (2) the transmittal of a letter rogatory or re- quest directly from a tribunal in the United States to the foreign or international tri- bunal, officer, or agency to whom it is ad- dressed and its return in the same manner. (June 25, 1948, ch. 646, 62 Stat. 948; Pub. L. 88–619, § 8(a), Oct. 3, 1964, 78 Stat. 996.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 653 (R.S. § 875; Feb. 27, 1877, ch. 69, § 1, 19 Stat. 241; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167). Word ‘‘officer’’ was substituted for ‘‘commissioner’’ to obviate uncertainty as to the person to whom the letters or commissioned may be issued. The third sentence of section 653 of title 28, U.S.C., 1940 ed., providing for admission of testimony ‘‘so taken and returned’’ without objection as to the meth- od of return, was omitted as unnecessary. Obviously, if the method designated by Congress is followed, it can- not be objected to. The last sentence of section 653 of title 26, U.S.C., 1940 ed., relating to letters rogatory from courts of foreign countries, is incorporated in section 1782 of this title. The revised section extends the provisions of section 653 of title 28, U.S.C., 1940 ed., which applied only to cases wherein the United States was a party or was in- terested, so as to insure a uniform method of taking foreign depositions in all cases. Words ‘‘courts of the United States’’ were inserted to make certain that the section is addressed to the Fed- eral rather than the State courts as obviously intended by Congress. Changes were made in phraseology. Page 457 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1782 Editorial Notes AMENDMENTS 1964—Pub. L. 88–619 substituted provisions author- izing the Department of State to transmit a letter rog- atory or request by a foreign or international tribunal, or by a tribunal in the United States, to the tribunal, officer or agency in the United States or its foreign or international counterpart, to whom addressed, and to return it after execution, and providing that this sec- tion does not preclude direct transmission of letters rogatory or requests between interested tribunals, offi- cers or agencies of foreign, international and of United States origin, for provisions authorizing United States ministers or consuls, whenever a United States court issues letters rogatory or a commission to take a depo- sition, to receive the executed letters or commissions from foreign courts or officers, endorse them with the place and date of receipt and any change in the deposi- tion, and transmit it to the clerk of the issuing court in the same manner as his official dispatches, in text and ‘‘Transmittal of letter rogatory or request’’ for ‘‘Foreign witnesses’’ in section catchline. § 1782. Assistance to foreign and international tribunals and to litigants before such tribu- nals (a) 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 ap- plication of any interested person and may di- rect that the testimony or statement be given, or the document or other thing be produced, be- fore 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 tri- bunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe other- wise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Pro- cedure. A person may not be compelled to give his tes- timony or statement or to produce a document or other thing in violation of any legally appli- cable privilege. (b) This chapter does not preclude a person within the United States from voluntarily giv- ing his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him. (June 25, 1948, ch. 646, 62 Stat. 949; May 24, 1949, ch. 139, § 93, 63 Stat. 103; Pub. L. 88–619, § 9(a), Oct. 3, 1964, 78 Stat. 997; Pub. L. 104–106, div. A, title XIII, § 1342(b), Feb. 10, 1996, 110 Stat. 486.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 649–653, 701, 703, 704 (R.S. §§ 871–875, 4071, 4073, 4074; Feb. 27, 1877, ch. 69, § 1, 19 Stat. 241; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167; June 25, 1936, ch. 804, 49 Stat. 1921). Sections 649–652 of title 28, U.S.C., 1940 ed., applied only to the District of Columbia and contained detailed provisions for issuing subpoenas, payment of witness fees and procedure for ordering and taking depositions. These matters are all covered by Federal Rules of Civil Procedure, Rules 26–32. Provisions in sections 649–652 of title 28, U.S.C., 1940 ed., relating to the taking of testimony in the District of Columbia for use in State and Territorial courts were omitted as covered by section 14–204 of the Dis- trict of Columbia Code, 1940 ed., and Rules 26 et seq., and 46 of the Federal Rules of Civil Procedure. Only the last sentence of section 653 of title 28, U.S.C., 1940 ed., is included in this revised section. The remaining provisions relating to depositions of wit- nesses in foreign countries form the basis of section 1781 of this title. Sections 701, 703, and 704 of title 28, U.S.C., 1940 ed., were limited to ‘‘suits for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party or shall have an interest.’’ The revised section omits this limitation in view of the general application of the last sentence of section 653 of title 28, U.S.C., 1940 ed., consolidated herein. The improvement of communications and the expected growth of foreign commerce will inevitably increase litigation involving witnesses separated by wide dis- tances. Therefore the revised section is made simple and clear to provide a flexible procedure for the taking of depositions. The ample safeguards of the Federal Rules of Civil Procedure, Rules 26–32, will prevent misuse of this section. The provisions of section 703 of title 28, U.S.C., 1940 ed., for punishment of disobedience to subpoena or re- fusal to answer is covered by Rule 37(b)(1) of Federal Rules or Civil Procedure. The provisions of section 704 of title 28, U.S.C., 1940 ed., with respect to fees and mileage of witnesses are covered by Rule 45(c) of Federal Rules of Civil Proce- dure. Changes were made in phraseology. 1949 ACT This amendment corrects restrictive language in sec- tion 1782 of title 28, U.S.C., in conformity with original law and permits depositions in any judicial proceeding without regard to whether the deponent is ‘‘residing’’ in the district or only sojourning there. Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title. AMENDMENTS 1996—Subsec. (a). Pub. L. 104–106 inserted ‘‘, including criminal investigations conducted before formal accu- sation’’ after ‘‘proceeding in a foreign or international tribunal’’ in first sentence. 1964—Pub. L. 88–619 substituted provisions which em- powered district courts to order residents to give testi- mony or to produce documents for use in a foreign or international tribunal, pursuant to a letter rogatory, or request, of a foreign or international tribunal or upon application of any interested person, and to direct that the evidence be presented before a person ap- pointed by the court, provided that such person may administer oaths and take testimony, that the evidence be taken in accordance with the Federal Rules of Civil Procedure unless the order prescribes using the proce- dure of the foreign or international tribunal, that a person may not be compelled to give legally privileged evidence, and that this chapter doesn’t preclude a per-