Fighting Extraterritorial Federal Subpoenas in International Cases

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Last Updated on: 2nd October 2023, 05:52 pm

Fighting Extraterritorial Subpoenas in International Cases: What You Need to Know

When federal prosecutors issue subpoenas demanding documents or testimony from foreign companies or people overseas, it can create some tricky legal issues. Defendants often challenge these extraterritorial subpoenas, arguing they go beyond the power of U.S. courts. Let’s break down extraterritorial subpoenas, defenses against them, and key court rulings.

What Are Extraterritorial Subpoenas?

An extraterritorial subpoena is when a U.S. federal court demands documents, testimony, or other evidence from a foreign entity or person located outside the United States. This allows prosecutors to obtain evidence related to international crimes like terrorism, drug trafficking, or financial fraud.For example, if a Swiss bank is suspected of laundering money for a U.S. drug cartel, prosecutors might subpoena the bank’s records. Or if a key witness lives in Canada, prosecutors may subpoena their testimony. Defendants often fight these subpoenas, claiming U.S. courts lack jurisdiction.

Key Laws on Extraterritorial Subpoenas

Several laws give U.S. courts the power to issue extraterritorial subpoenas:

• The Patriot Act expanded jurisdiction for terrorism and national security cases.
• Drug trafficking laws allow subpoenas related to international drug operations.
• Money laundering and financial crime laws permit subpoenas for overseas records.

However, these laws have limits. For instance, the Patriot Act requires reasonable grounds to believe the records sought are relevant to a terrorism probe.

International Agreements on Evidence Gathering

In addition to U.S. laws, international treaties facilitate extraterritorial subpoenas:

• Mutual legal assistance treaties (MLATs) between the U.S. and over 60 countries allow cooperation on investigations.
• Letters rogatory can formally ask foreign courts to collect evidence under international law.
• Informal cooperation pacts between police and prosecutors also enable information sharing.

However, this process can be slow. Prosecutors often use subpoenas directly when they need foreign evidence quickly.

Key Defenses Against Extraterritorial Subpoenas

Some common defenses against extraterritorial subpoenas include:

• Lack of personal jurisdiction – Argue the subpoena targets someone beyond the court’s authority.
• Noncompliance with treaties – Claim prosecutors didn’t properly use MLATs or letters rogatory.
• Foreign nondisclosure laws – Cite blocking statutes prohibiting releasing the information.
• Undue burden – Argue compliance would be unreasonably difficult or costly.
• Relevance – Challenge whether the information sought is truly relevant or admissible.
• Privilege – Assert privileges like attorney-client confidentiality or bank secrecy.

Courts weigh these defenses against the government’s need for the evidence when deciding whether to quash or enforce an extraterritorial subpoena.

Key Court Rulings

There have been several landmark rulings on extraterritorial subpoenas:

• U.S. v. Bank of Nova Scotia (1988) – A Canadian bank challenged a subpoena, but the court ruled prosecutors can obtain foreign bank records for criminal probes.
• In re Sealed Case (828 F.2d 776) – The court quashed a subpoena, finding it violated the Right to Financial Privacy Act by seeking foreign bank records without proper notice.
• Linde v. Arab Bank (706 F.3d 92) – The court upheld sanctions against a Jordanian bank for refusing to comply with a terrorism financing subpoena.

These cases show courts balance law enforcement interests against burdens on subpoena recipients.

Tips for Challenging Subpoenas

If you get an extraterritorial subpoena, here are some practical tips:

• Hire experienced legal counsel, preferably with subpoena experience.
• Negotiate with prosecutors to narrow the scope of requested records.
• Raise all plausible legal defenses against the subpoena.
• Offer to produce some records voluntarily to avoid contempt sanctions.
• For testimony, request remote video instead of traveling to the U.S.

Challenging a subpoena is complex, but a knowledgeable attorney can help assert your rights and avoid undue burdens.In summary, extraterritorial subpoenas involve complicated legal issues at the intersection of U.S. law, international law, and foreign laws. Recipients have defenses available, but should seek qualified counsel. Courts aim to balance law enforcement interests against burdens on subpoena recipients when reviewing challenges.