Monday, February 14, 2011

Ninth Circuit Rules Russia Entitled to Broad Discovery under Bilateral Treaty with U.S.

The U.S. Court of Appeals for the Ninth Circuit recently issued a ruling interpreting the obligations of the United States to cooperate with a Russian request for discovery in connection with a criminal case in U.S. v. Global Fishing, Inc., Case No. 09-35096 (Jan. 31, 2011).

In 2007, Arkadi Gontmakher, President of Global Fishing Inc., was arrested and criminally charged by Russian authorities with illegal crabbing.  Russia authorities then sought the assistance of the U.S. government in obtaining information and documents that were in the possession of Global Fishing in the U.S. in connection with the investigation.  The Russian request was made pursuant to the 2002 U.S.-Russia mutual assistance treaty and the implementing federal statute, 28 U.S.C. sec. 1782, which generally authorizes requests for legal assistance in the collection of evidence for use in a foreign proceeding.  Global Fishing resisted turning over the requested information and documents and asked the U.S. courts to quash the subpeona in its discretion.

The Ninth Circuit Court of Appeals held that the Russian authorities are entitled to broad discovery under the treaty, which severely limits the court's usual discretion in these matters.  Despite these limitations, however, the court stated that it could still deny a request if it was unconstitutional (e.g., if it violated due process), but that was not the case here.  The full text of the opinion may be found here.



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