In Re Premises Located at 840 140th Ave. Ne
634 F.3d 557
| 9th Cir. | 2011Background
- The US-Russia MLAT provides for mutual legal assistance in criminal matters and allows execution of requests for documents and other items.
- Russia sought assistance under the MLAT to obtain documents from Global Fishing, Inc. in a Russian investigation of Arkadi A. Gontmakher, a US citizen and Global Fishing president.
- The US government petitioned the district court under Article 7 of the MLAT and 28 U.S.C. § 1782 to appoint two co-commissioners to collect evidence and execute the Russian request.
- Global Fishing moved for a protective order, arguing the Russian proceedings are corrupt and the district court should quash the subpoena under § 1782 discretion.
- The district court denied the protective order, holding no § 1782 discretion to quash in MLAT matters but allowing the subpoena to proceed subject to constitutional safeguards.
- The Ninth Circuit held that it has appellate jurisdiction over the district court’s denial and that MLAT requests are to be treated as using § 1782 procedures without importing § 1782’s discretionary limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the panel has appellate jurisdiction over the district court's order | Government argues final MLAT order is appealable | Global Fishing contends no final order under domestic standards | Yes, appellate jurisdiction exists |
| Scope of review for MLAT requests vs § 1782 discretion | MLAT requests overridden by § 1782 discretion | MLAT supersedes § 1782 discretion | MLAT allows § 1782 procedures without § 1782 discretionary limits |
| Whether the MLAT supersedes the discretionary factors of § 1782 | Treaty imposes no broad discretion limits on district courts | Treaty preserves § 1782 discretion via importation of factors | Treaty supersedes broad discretion; district court should grant the request |
| Constitutional limits on MLAT enforcement | Enforcement could violate separation of powers or due process | Constitutional safeguards do not bar MLAT enforcement in this case | MLAT enforcement does not offend the Constitution here |
| Timeliness and fairness concerns regarding the Russian proceedings | Russian system is corrupt; protections should bar assistance | Political branches weighed these concerns; respect for foreign justice persists | Enforcement does not violate due process or separation of powers |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (discretionary factors for § 1782 discovery)
- Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th Cir. 2002) (district court broad discretion to deny § 1782 requests)
- Bayer AG v. Betachem, Inc., 173 F.3d 188 (3d Cir. 1999) (finality of § 1782 discovery order for appeal)
- In re Comm'r's Subpoenas, 325 F.3d 1287 (11th Cir. 2003) (MLAT interpretation and judicial cooperation)
- In re Letters Rogatory from Haugesund, Norway, 497 F.2d 378 (9th Cir. 1974) (apparent exceptions to jurisdiction in § 1782 context)