IN RE: ATTORNEY GENERAL OF QUEBEC
Filing
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ORDER granting in part 1 Motion for Order to Take Testimony. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
IN RE: APPLICATION OF ATTORNEY
GENERAL OF QUEBEC FOR AN ORDER
TO TAKE TESTIMONY OF PAUL BUDGE
FOR USE IN A FOREIGN PROCEEDING
UNDER 28 U.S.C. § 1782
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1:21-mc-00264-JCN
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IN RE: APPLICATION OF ATTORNEY
GENERAL OF QUEBEC FOR AN ORDER
TO TAKE TESTIMONY OF LYNNE
LABONTE FOR USE IN A FOREIGN
PROCEEDING UNDER 28 U.S.C. § 1782
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1:21-mc-00266-JCN
ORDER ON MOTIONS TO TAKE TESTIMONY
After obtaining two requests for international judicial assistance (letters rogatory)
from the Quebec Superior Court in the Province of Quebec, Canada, Petitioner, the
Attorney General of Quebec, asks the Court to issue subpoenas directing two individuals
(Paul Budge and Lynne Labonte, collectively, the witnesses) to provide testimony for use
in a trial in the court in Quebec (the Canadian proceeding). (1:21-mc-00264-JCN:
Application, ECF No. 1; Motion, ECF No. 4.) (1:21-mc-00266-JCN: Motion, ECF No. 1.)
Following a review of the record in both matters and after consideration of Petitioner’s
filings, the Court grants in part the requests.
DISCUSSION
Petitioner seeks the subpoenas pursuant to 28 U.S.C. § 1782, which provides that
the district court may order a person to give testimony for use in a foreign court upon a
request made pursuant to “a letter rogatory issued, or request made, by a foreign or
international tribunal or upon the application of any interested person …” 28 U.S.C. §
1782(a). In In re Schlich, 893 F.3d 40 (1st Cir. 2018), the First Circuit identified the factors
relevant to a court’s assessment of a request for an order pursuant to § 1782:
Today's § 1782 is the product of over 150 years of Congressional effort and
manifests the intent to provide federal-court assistance in gathering evidence
for use in foreign tribunals. The text of § 1782 provides that granting discovery
is proper only if: 1) the person from whom discovery is sought resides or is
found in the district where the court sits; 2) the request seeks evidence (the
testimony or statement of a person or the production of a document or other
thing) for use in a proceeding in a foreign or international tribunal; 3) the request
is made by a foreign or international tribunal or by any interested person; and
4) the material sought is not protected by any legally applicable privilege. If all
of these statutory requirements are met, the district court is authorized, but not
required, to provide judicial assistance by permitting discovery.
The district court's discretion to allow discovery if all § 1782 requirements are
met is not boundless. Rather, district courts must exercise their discretion under
§ 1782 in light of the twin aims of the statute: providing efficient assistance to
participants in international litigation and encouraging foreign countries by
example to provide similar assistance to our courts. The Supreme Court has
identified four discretionary factors that also bear consideration in arriving at a
decision. The first factor to consider is whether the person from whom
discovery is sought is a party to the foreign proceeding, in which case the need
for § 1782(a) aid generally is not as apparent because a foreign tribunal has
jurisdiction over those appearing before it, and can itself order them to produce
evidence. The second factor … was adopted from a Senate Report explaining
that a court may take into account the nature of the foreign tribunal, the
character of the proceedings underway abroad, and the receptivity of the foreign
government or the court or agency abroad to U.S. federal-court judicial
assistance. The third factor to consider is whether the request conceals an
attempt to circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States. Finally, the fourth factor addresses whether
the request is unduly intrusive or burdensome to the extent that it should either
be trimmed or rejected outright. In sum, a district court must first determine
whether the statutory requirements are met. If they are, the district court should
then consider the four discretionary factors before arriving at a decision.
Id. at 46-47 (internal quotation marks and citations omitted).
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As to the textual requirements of § 1782, Petitioner has demonstrated that (1) the
witnesses reside in the District of Maine, (2) the witnesses’ testimony would be for use in
the Canadian proceeding, and (3) the requests are made by a party to the Canadian
proceeding and pursuant to Letters Rogatory issued by the court presiding over the
Canadian proceeding. (Declarations of Ruth Arless-Frandsen, ECF No. 2.)
With the statutory requirements satisfied, the Court has the discretion to issue the
subpoenas. An assessment of the discretionary factors identified in Schlich supports the
issuance of the subpoenas: given that the witnesses reside in Maine, the Canadian court
does not have jurisdiction over and, therefore, cannot compel the witnesses to testify in the
trial; the Canadian proceeding arises out of a devastating train derailment and the Canadian
court has requested this Court’s assistance; the record lacks any evidence to suggest that
the requests are an effort to circumvent any proof-gathering restrictions or policies of
Quebec – in fact, the Canadian court has requested this Court’s assistance; and compliance
with a subpoena to provide remote testimony would not be unduly burdensome or intrusive
for the witnesses - the witnesses would not have to travel to Canada to provide the
testimony and could testify from their homes. In short, Petitioner’s requests for the
subpoenas are reasonable and supported by the record.
The issue is whether this Court can or should order the witnesses to testify remotely
at the trial and/or require each witness to appear at a deposition to be conducted remotely.
While Petitioner maintains the Court can authorize a subpoena directing a person to testify
remotely at trial despite the geographical limitations of Federal Rule of Civil Procedure
45(c), Petitioner acknowledges that “[i]t appears that no court has specifically addressed
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remote trial testimony in a foreign proceeding through the Letters Rogatory process.”
(Motion at 9-10.)1
Petitioner relies in part on this Court’s decision In Official Committee of Unsecured
Creditors v. Calpers Corporate Partners, LLC, No. 1:18-cv-68-NT, 2021 WL 3081880, at
*3 (D. Me. July 20, 2021), where the Court (Torresen, J.) considered whether an out-ofstate witness could be subpoenaed to testify remotely at a trial in a courtroom in this District
that was more than 100 miles from the witness’ home. Noting the issue was “novel” in the
District, the Court observed that “other courts have addressed similar requests and have
come to varying conclusions.” Id. at *2. After assessing the decisions of other courts, the
Court concluded that “where there is good cause in compelling circumstances, a court can
authorize a witness to testify via contemporaneous video transmission and can then
subsequently compel the witness to give the testimony from a location within 100 miles of
her residence.” Id. at *3.
Because Petitioner asks the Court to authorize subpoenas directing the witnesses to
testify in a foreign court pursuant to § 1782, Petitioner’s request does not present the exact
issue addressed by the Court in Calpers. The Court’s authority is governed by § 1782,
which authorizes the district court to order a person to give testimony “for use in a
proceeding in a foreign or international tribunal.” The statute’s language and case law
suggest the statute is designed to facilitate pretrial discovery rather than trial testimony.
See, e.g., In re Porsche Automobil Holding SE, 985 F.3d 115, 120 (1st Cir. 2021) (“Section
Because Petitioner’s filings in both matters are essentially the same, reference to the record shall be to the
motion in 1:21-mc-00264-JCN.
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1782 authorizes district courts to order persons residing in their district to participate in
discovery ‘for use in a proceeding in a foreign or international tribunal.’”)
Given that § 1782 requests have typically been used to obtain discovery, given the
lack of authority to suggest that § 1782 authorizes the district court to order remote trial
testimony in a foreign court, given that under the Calpers reasoning, the Court could direct
the witnesses to appear for a deposition in accordance with Federal Rule of Civil Procedure
45(c), given that Federal Rule of Civil Procedure 30 specifically authorizes the Court to
order a deposition be taken by remote means, and given that Petitioner’s application “in
essence, allows [Respondent] the choice of either: (a) remote trial testimony or, in the
alternative, (b) remote videotape deposition” (Motion at 11), the Court will authorize the
issuance of subpoenas directing the witnesses to appear for a videotaped deposition by
remote means rather than directing the witnesses to testify by remote means at the trial.2
CONCLUSION
Based on the foregoing analysis, the Court finds and orders:
1. The Clerk shall issue subpoenas directing the witnesses to appear for a
videotaped deposition by remote means to give testimony in the Canadian
proceeding.3 Prior to the issuance of the subpoenas, Petitioner shall notify the
Clerk of the dates and times at which the depositions will be conducted.
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Because the Court is authorizing subpoenas for depositions, and not trial testimony, the Court does not
believe the Court has to find good cause in compelling circumstances for the deposition testimony to be
taken remotely as discussed in Calpers.
Because this order is issued on Petitioner’s application without notice to the witnesses, the Court is not
aware of any bases the witnesses might have to object to the issuance of the subpoenas to appear for the
depositions. The Court’s order is subject to the ability of the parties and the witnesses to ask the Court to
quash or modify the subpoenas in accordance with Federal Rule of Civil Procedure 45(c).
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2. After service of a subpoena, if a witness prefers, the witness can agree to testify
remotely at trial.
3. Each witness may have counsel present during the deposition or trial testimony.
4. Each witness may be questioned on the subject matter of the Canadian
proceeding, subject to any applicable privilege.
5. The Honourable Martin Bureau, J.C.S., of the Quebec Superior Court, is
appointed Rogatory commissioner; for any deposition that is conducted without
the involvement of the Quebec Superior Court, in accordance with 28 U.S.C. §
1782(a), the Court directs Petitioner to secure the services of a certified court
reporter and the Court appoints the court reporter to administer the oath and take
the testimony.
6. A copy of this order shall be served with the subpoena.
NOTICE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 30th day of September, 2021
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