28 U.S.C. § 1784 — Contempt

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. Page 459 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1821 Editorial Notes AMENDMENTS 1964—Pub. L. 88–619 amended section generally, and among other changes, authorized the court to order a person to show cause for failing to produce a document or other thing in subsec. (a), provided that a copy of the order to show cause shall be served in accordance with section 1783(b) of this title, and struck out provi- sions requiring the marshal making levy or seizure to forward to any United States consul in the country where the witness may be, a copy of the order and a re- quest for its personal service, and to cause publication of the order in the district where the issuing court sits, in subsec. (c), and struck out provisions in subsec. (d) permitting any judgment rendered upon service by pub- lication only to be opened for answer within one year. § 1785. Subpoenas in multiparty, multiforum ac- tions When the jurisdiction of the district court is based in whole or in part upon section 1369 of this title, a subpoena for attendance at a hear- ing or trial may, if authorized by the court upon motion for good cause shown, and upon such terms and conditions as the court may impose, be served at any place within the United States, or anywhere outside the United States if other- wise permitted by law. (Added Pub. L. 107–273, div. C, title I, § 11020(b)(4)(B)(i), Nov. 2, 2002, 116 Stat. 1828.) Editorial Notes PRIOR PROVISIONS A prior section 1785, act June 25, 1948, ch. 646, 62 Stat. 950, provided a privilege against self-incrimination on examination under letters rogatory, prior to repeal by Pub. L. 88–619, § 12(a), Oct. 3, 1964, 78 Stat. 998. See sec- tion 1782(a) of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to a civil action if the accident giving rise to the cause of action occurred on or after the 90th day after Nov. 2, 2002, see section 11020(c) of Pub. L. 107–273, set out as a note under section 1369 of this title. CHAPTER 119—EVIDENCE; WITNESSES Sec. 1821. Per diem and mileage generally; subsistence. 1822. Competency of interested persons; share of penalties payable. [1823. Repealed.] 1824. Mileage fees under summons as both witness and juror. 1825. Payment of fees. 1826. Recalcitrant witnesses. 1827. Interpreters in courts of the United States. 1828. Special interpretation services. Editorial Notes AMENDMENTS 1978—Pub. L. 95–539, § 2(b), Oct. 28, 1978, 92 Stat. 2042, added items 1827 and 1828. 1970—Pub. L. 91–563, § 5(b), Dec. 19, 1970, 84 Stat. 1478, struck out item 1823 ‘‘United States officers and em- ployees’’. Pub. L. 91–452, title III, § 301(b), Oct. 15, 1970, 84 Stat. 932, added item 1826. § 1821. Per diem and mileage generally; subsist- ence (a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section. (2) As used in this section, the term ‘‘court of the United States’’ includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a dis- trict court of the United States. (b) A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and re- turning from the place of attendance at the be- ginning and end of such attendance or at any time during such attendance. (c)(1) A witness who travels by common car- rier shall be paid for the actual expenses of trav- el on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness’s residence by the shortest practical route in going to and re- turning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished. (2) A travel allowance equal to the mileage al- lowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each wit- ness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services. (3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodg- ing and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses. (4) All normal travel expenses within and out- side the judicial district shall be taxable as costs pursuant to section 1920 of this title. (d)(1) A subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day. (2) A subsistence allowance for a witness shall be paid in an amount not to exceed the max- imum per diem allowance prescribed by the Ad- ministrator of General Services, pursuant to section 5702(a) of title 5, for official travel in the area of attendance by employees of the Federal Government. (3) A subsistence allowance for a witness at- tending in an area designated by the Adminis- trator of General Services as a high-cost area shall be paid in an amount not to exceed the maximum actual subsistence allowance pre- scribed by the Administrator, pursuant to sec-