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Published online by Cambridge University Press: 27 February 2017
Appellant, Thomas J. Ward, appealed a district court decision appointing commissioners to obtain evidence sought by the Crown Prosecution Service of the United Kingdom (Crown Service). The district court had appointed the commissioners pursuant to 28 U.S.C. §1782 (1982), to depose in the United States certain third-party witnesses with knowledge relevant to a criminal investigation in the United Kingdom. On review, the Court of Appeals for the District of Columbia Circuit (per Ginsburg, J.) affirmed the district court’s decision and held: that 28 U.S.C. §1782 authorized the appointment of the commissioners, even though there was no pending criminal proceeding in the United Kingdom when the depositions were requested and the procedure for the depositions might vary from that normally applicable in the United States. The court remanded the case, however, for a further determination to ensure that the depositions would comply with procedural rules applicable in the United Kingdom.
1 683 F.Supp. 841 (D.D.C. 1988).
2 Id. at 842.
3 See Smit, International Litigation Under the United States Code, 65 Colum. L. Rev. 1015 (1965).
4 870 F.2d 686, 688.
5 In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151 (11th Cir. 1988), cert, denied, 109 S.Ct. 784 (1989), summarized in 82 AJIL 824 (1988).
6 Like the Eleventh Circuit, the Ward court followed the advice of the reporter of the 1964 Commission on International Rules of Judicial Procedure, who had written in 1965 that the term “interested person” should include “foreign and international officials” and other persons who possess “a reasonable interest in obtaining the [judicial] assistance.” See Smit, supra note 3, at 1027.
7 Azar, 848 F.2d at 1155.
8 870 F.2d at 691.
9 Id.
10 Id. at 689; see also id. at 692.
11 Id. at 692.
12 Id.
13 Ward argued that the type of prehearing examination of witnesses sought by the Crown Service could not be compelled under U.S. law by American criminal prosecutors. Id. In addition, he argued that U.S. law would ensure the presence and participation of his counsel at the examinations, participation that the district court had denied in responding to the request under §1782. Id. at 692–93.
14 Id. at 692.
15 Id. at 693 (quoting the report endorsing changes in § 1782, S. Rep. No. 1580, 88th Cong., 2d Sess. 7 (1964), reprinted in 1964 U.S. Code Cong. & Admin. News 3788–89).
16 Id. at 693 n.8.
17 Id. at 693–94.
18 See Young v. Dep’t of Justice, No. 87 Civ. 8307, slip. op. at 14–16 (S.D.N.Y. Nov. 28, 1988); In re Request for Int’l Judicial Assistance (Letter Rogatory) from Federative Republic of Brazil, 700 F.Supp. 723 (S.D.N.Y. 1988); In re Letter Rogatory from Public Prosecutor’s Office at Regional Ct. of Hamburg, Federal Republic of Germany, Misc. No. M-19-88, slip. op. at 4 (S.D.N.Y. June 21, 1988).