Thursday, April 26, 2007

Eleventh Circuit Holds That General Discovery Rules Apply to 28 U.S.C.§ 1782 Discovery Order; Discovery Not Barred by FRCP 69

Per In re Clerici, --- F.3d ---, 2007 WL 840327 (11th Cir. Mar. 21, 2007):

Appellant Patricio Clerici (“Clerici”) appeals the district court's January 27, 2006 order denying his motion to vacate the district court's October 12, 2005 order granting the government's application, filed pursuant to 28 U.S.C. § 1782, for judicial assistance to foreign tribunals. In its January 27, 2006 order, the district court appointed an Assistant United States Attorney to obtain sworn answers from Clerici to the questions posed in the Panamanian Court's letter rogatory [regarding plaintiff NoName's efforts to recover a sizable Panamanian judgment against Clerici]. . . .

Clerici . . . asserts that . . . Rule 69(a) of the Federal Rules of Civil Procedure bars any § 1782 discovery in this case. More specifically, Clerici contends that (1) any evidence must be obtained in accordance with the Federal Rules of Civil Procedure; (2) Federal Rule 69(a) is applicable because the Panamanian Court is seeking discovery to aid NoName in the execution of its judgment; and (3) no discovery is authorized under Rule 69(a) until NoName obtains a valid, domesticated judgment in this country. We agree that the discovery rules in the Federal Rules of Civil Procedure apply here but conclude that Rule 69(a) does not. We explain why.

The district court's authority to order Clerici to give testimony “for use in a proceeding in a foreign ... tribunal” stems from § 1782. . Section 1782(a) then provides that, in its order granting § 1782 assistance, the district court “may prescribe the practice and procedure . . . for taking the testimony or statement or producing the document or other thing.” Id. (emphasis added). This “practice and procedure” may be “in whole or part the practice and procedure of the foreign country or the international tribunal.” Id. To the extent that the district court does not otherwise prescribe the practice and procedure, § 1782(a) provides that “the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.” Id.

Here, the district court's order did not prescribe the “practice and procedure” for taking Clerici's testimony. Thus, under § 1782, this testimony must be taken “in accordance with the Federal Rules of Civil Procedure.” Section 1782(a) refers to the Federal Rules, not for whether the district court can order Clerici to give any testimony, but only for the procedures or manner in which that testimony is to be taken.

Once discovery is authorized under § 1782, the federal discovery rules, Fed.R.Civ.P. 26-36, contain the relevant practices and procedures for the taking of testimony and the production of documents. For example, Rule 26(a)(5) authorizes the taking of testimony by deposition upon written questions, and Rule 31 provides the specific practices and procedures for taking depositions upon written questions. See Fed.R.Civ.P. 26(a)(5), 31.

In contrast, Rule 69(a) provides the process by which a judgment creditor can enforce a money judgment and authorizes post-judgment discovery in aid of execution of that judgment.Fed.R.Civ.P. 69(a). Rule 69(a) itself does not prescribe a practice and procedure for gathering evidence, but gives the judgment creditor the choice of federal or state discovery rules. Rule 69(a) simply authorizes a setting, post-judgment execution, in which discovery may take place, not the specific manner or procedures in which testimony should be taken or documents should be produced. Id. Because § 1782(a) refers to the Federal Rules only for the manner or procedure in which evidence is to be obtained, and Rule 69(a) prescribes no such manner or procedure, Rule 69(a) is inapplicable to § 1782 orders.

. . .

In sum, Rule 69(a) does not bar the discovery authorized in this case by the district court's § 1782 order just because NoName's foreign judgment has not been domesticated in the United States. . . .


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