Federal Government Is A “Person” Amenable To Service Of A Rule 45 Subpoena

The Court of Appeals for the District of Columbia Circuit has rejected the assertion by the federal government that it is not subject to Rule 45 because it is not a “person.”

In Yousuf v. Samantar, No. 05-5197, 2006 WL 1651050 (D.C. Cir. June 16, 2006), plaintiffs served a third-party subpoena on the State Department seeking certain documents relevant to their tort claims against another individual. The government objected that Rule 45(a)(1)(C) authorizes service of a subpoena only upon a “person” and that it was not within the scope of that word as used in the rules.

After an exhaustive analysis of the government’s statutory construction arguments, the court held that litigants indeed may serve third-party subpoenas upon the government because the framers of the rules intended the term “person” to include non-natural persons including the U.S. government.

American Subpoena In Connection With European Proceedings Quashed As Attempt To Circumvent Foreign Rules

Microsoft Corporation recently attempted to use a subpoena issued through Massachusetts federal court under 28 U.S.C. § 1782(a) to obtain certain documents from competitor Novell Inc. for use in connection with European antitrust proceedings. In re Application of Microsoft Corp., No. 06-10061-MLW (D. Mass. Apr. 17, 2006).

The European regulator found that Microsoft failed to comply with an earlier order, and it provided a set of documents to Microsoft in support of its finding. Microsoft subpoenaed Novell to obtain additional documents not provided by the regulator, but the subpoena was quashed.

The federal court relied heavily on the views of the European regulator, who took the position that the use of American third-party discovery techniques circumvented the balance struck under the European system designed to avoid a chilling effect on third-party cooperativeness in antitrust investigations. Finding that § 1782(a) was designed to aid foreign tribunals, not interfere with them, the court refused to enforce the subpoena.