Section 1782. Mutual Legal Assistance Treaty. Second Circuit reverses the district court and argues that a government’s failure to use a mutual legal assistance treaty is not evidence that it is seeking to circumvent evidence-gathering procedures.

Fed. Republic of Nigeria v. VR Advisory Servs., Ltd.20-3909-cv (2nd Cir. Feb. 24, 2022) [click for opinion]

28 USC § 1782 is a statute that allows parties to a foreign proceeding, among other things, to seek discovery in the United States for the benefit of such foreign proceeding. Nigeria has filed an application under Section 1782 seeking the discovery of VR Advisory Services, Ltd. for use in criminal proceedings in Nigeria relating to the allegedly fraudulent obtaining of a public service contract. The proceedings were part of a decades-old dispute that included a $6.6 billion arbitration award against Nigeria. The district court initially granted the application under Section 1782, but later reversed that order. Nigeria appealed this decision.

On appeal, the Second Circuit explained that the Section 1782 analysis is a two-step process. First, a court must ensure that all three statutory requirements are met: (1) the person from whom discovery is sought resides (or is found) in the district, (2) the discovery is intended for use in a proceeding in a foreign or international court, and (3) the request is made by a foreign or international court or any interested person. None of these issues was contested in this case.

If the legal requirements are met, the court may grant the request at its discretion. Since the Supreme Court ruling Intel decision, courts have generally considered the following non-exhaustive list of discretionary factors:

(1) whether “the person sought to be discovered is a participant in the foreign proceeding”, in which case “the need for the assistance of Section 1782(a) is generally not so obvious”; (2) “the nature of the foreign court, the character of the proceedings pending abroad, and the responsiveness of the foreign government or foreign court or agency to legal assistance from the United States Federal Court -United” ; (3) “if the § 1782(a) request conceals an attempt to circumvent foreign evidence-gathering restrictions or other policies of a foreign country or the United States”; and (4) whether the request is “unduly intrusive or burdensome”.

The Second Circuit noted that while the final decision to grant or deny a request is discretionary, courts are not free to read extralegal obstacles to discovery in Section 1782 under the guise of exercising their discretion. .

A mutual legal assistance treaty (“MLAT”) is an agreement between two sovereigns to provide assistance in criminal matters when evidence, persons, or property potentially useful to one sovereign’s attorneys can be found within the jurisdiction of the other. other. The decision in this case turned on the third discretionary factor. The District Court had found that Nigeria’s use of Section 1782 concealed an attempt to “circumvent” the US-Nigeria MLAT and dismissed the Section 1782 claim primarily for that reason.

The Second Circuit noted that neither the Supreme Court nor any appellate court has yet considered whether a foreign sovereign who has an MLAT with the United States “bypasses” that MLAT by filing a Section 1782 petition. Three district courts in different circuits had considered the matter, and all had ruled on substantially the same basis as the district court in this case. The second circuit began its analysis with the word “bypass”. Something that is “bypassed” must be an obstacle that one normally expects to encounter. Within the framework of article 1782 and the third Intel factor, circumvention occurs when the applicant uses a request under Article 1782 to avoid measures that are foreseen restrict certain ways of collecting or using evidence. In order to determine whether a request such as that of Nigeria can, in law, be considered to “circumvent” the Mutual Legal Assistance Agreement between the United States and Nigeria within the meaning of Intelthe court had to determine whether the MLAT is correctly understood to incorporate a restriction on the collection of evidence.

The court found that the text of the MLAT made clear that it was intended to expand, not diminish, each signatory’s access to criminal evidence in the jurisdiction of the other. In addition, Article XIX of the Treaty provides that “[a]The assistance and procedures provided for in this Treaty shall not preclude or limit the provision by either Contracting Party of assistance under any other applicable international conventions, arrangements, agreements, practices or under the laws of the Contracting Parties.” Thus, insofar as Congress has fixed any policy regarding foreign requests for assistance in criminal matters – with or without MLAT – this policy is that requests under Section 1782 should remain an option for the foreign sovereign.

The court recognized that there were reasons to favor the use of MLAT over Section 1782, such as consistency, protection of domestic entities, and reliance on executive branch expertise. But none of these considerations were relevant when evaluating the third or any other Intel factor.

The Second Circuit held that the District Court based its decision on an error of law, and thus exceeded the limits of its discretion, by requiring Nigeria to justify its use of its Section 1782 claim rather than an MLAT request for discovery as part of criminal proceedings. in Nigeria.

Finally, the Second Circuit addressed the issue of whether there is “circumvention” if a party seeking disclosure in one foreign proceeding actually intends to use it in another. The tribunal “noted” that there would be nothing “inappropriate” about Nigeria’s use of the find obtained in the context of the present case in another proceeding which also satisfied the legal requirements of the item 1782.

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