Case Update (24 April 2025): In re International Judicial Assistance in Azak v. Azak; it was appropriate to appoint a commissioner to take testimony from a witness in WA for foreign proceeding
A Turkish judge, in a contested divorce proceeding, issued a Letter of Request under the Hague Evidence Convention, requesting testimony from the divorcing parties’ son, who resides in Washington State. The Turkish judge attached 19 interrogatories to the son, seeking his answers. The Letter of Request was sent to the Turkish Embassy in D.C., who then transmitted it to the U.S. Central Authority - the U.S. Department of Justice Office of International Judicial Assistance - for execution. OIJA attempted three times, over the next several months, to contact the parties’ son in Washington so that he could provide testimony voluntarily. But, they were unsuccessful. On March 24, 2025, OIJA transmitted the Letter of Request to the U.S. Attorney’s Office in the Western District of Washington for execution in accordance with 28 USC 1782 and the Hague Evidence Convention. One week later, the U.S. filed an ex parte motion seeking to appoint an AUSA as commissioner to obtain the testimony.
28 USC 1782 provides that a district court in the district where the person resides or is found may order that person to give testimony or produce documents, etc., for use in a foreign proceeding. There are three requirements that must be satisfied to compel discovery in this manner: (1) the person from whom discovery is sought resides or is found in the district where the application is made; (2) the discovery is ‘for use in a proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or international tribunal or any interested person. Even if the three conditions are met, the district court retains discretion over whether to grant the request, and may impose conditions. The Supreme Court created a non-exhaustive list of discretionary factors for courts to consider in 1782 suits.
The court here found that all factors were met, and that the discretionary factors weighed in favor of granting the government’s motion. Therefore, it appointed an AUSA as commissioner to fulfill the request for judicial assistance, and authorized her to serve the witness in Washington State with a subpoena.
