Latest news with #FederalRulesofCivilProcedure
Yahoo
16-05-2025
- Politics
- Yahoo
Contributor: Lower-court judges have no business setting the law of the land
On Thursday, the Supreme Court heard oral arguments in the case of Trump vs. CASA Inc. Though the case arises out of President Trump's January executive order on birthright citizenship and the 14th Amendment, Thursday's oral argument had very little to do with whether everyone born in the U.S. is automatically a U.S. citizen. Instead, the argument mostly focused on a procedural legal issue that is just as important: whether lower-court federal judges possess the legitimate power to issue nationwide injunctions to bring laws or executive orders to a halt beyond their districts. There is a very straightforward answer to this question: No, they don't. And it is imperative for American constitutionalism and republican sef-governance that the justices clearly affirm that. Let's start with the text. Article III of the Constitution establishes the 'judicial Power' of the United States, which University of Chicago Law School professor Will Baude argued in a 2008 law review article 'is the power to issue binding judgments and to settle legal disputes within the court's jurisdiction.' If the federal courts can bind certain parties, the crucial question is: Who is bound by a federal court issuing an injunction? In our system of governance, it is only the named parties to a given lawsuit that can truly be bound by a lower court's judgment. As the brilliant then-Stanford Law School professor Jonathan Mitchell put it in an influential 2018 law review article, an 'injunction is nothing more than a judicially imposed non-enforcement policy' that 'forbids the named defendants to enforce the statute' — or executive order — 'while the court's order remains in place.' Fundamentally, as Samuel L. Bray observed in another significant 2017 law review article, a federal court's injunction binds only 'the defendant's conduct … with respect to the plaintiff.' If other courts in other districts face a similar case, those judges might consider their peer's decision and follow it, but they are not strictly required to do so. (For truly nationwide legal issues, the proper recourse is filing a class-action lawsuit, as authorized by Rule 23 of the Federal Rules of Civil Procedure.) One need not be a legal scholar to understand this commonsense point. Americans are a self-governing people; it is we the people, according to the Constitution's Preamble, who are sovereign in the United States. And while the judiciary serves as an important check on congressional or executive overreach in specific cases or controversies that come before it (as Article III puts it), there is no broader ability for lower-court judges to decide the law of the land by striking down a law or order for all of the American people. As President Lincoln warned in his first inaugural address: 'The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by' the judiciary, 'the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers.' Simply put, the patriots of 1776 did not rebel against the tyranny of King George III only to subject themselves, many generations later, to the black-robed tyranny of today. They fought for the ability to live freely and self-govern, and to thereby control their own fates and destinies. Judicial supremacy and the concomitant misguided practice of nationwide injunctions necessarily deprive a free people of the ability to do exactly that. It is true that Chief Justice John Marshall's landmark 1803 ruling in Marbury vs. Madison established that 'it is emphatically the province and duty of the judicial department to say what the law is.' But it is also true, as Marshall noted in the less frequently quoted sentence directly following that assertion: 'Those who apply the rule to particular cases, must of necessity expound and interpret that rule.' Note the all-important qualifier of 'apply the rule to particular cases.' Marbury is often erroneously invoked to support judicial supremacy, but the modest case- and litigant-specific judicial review that Marshall established has nothing to do with the modern judicial supremacy and nationwide injunctions that proliferate today. It is that fallacious conception of judicial supremacy that was argued Thursday at the Supreme Court. Chief Justice John G. Roberts Jr., one of the swing votes in CASA, is not always known for judicial modesty. On the contrary, in clumsily attempting to defend his institution's integrity, he has at times indulged in unvarnished judicial supremacist rhetoric and presided over an unjustifiable arrogation of power to what Alexander Hamilton, in the Federalist No. 78, referred to as the 'least dangerous' of the three branches. If Roberts and his fellow centrist justices — namely, Brett Kavanaugh and Amy Coney Barrett — have any sense of prudence, they must join their more stalwart originalist colleagues in holding that nationwide injunctions offend the very core of our constitutional order. Such a ruling would not merely be a win for Trump; it would be a win for the Constitution and for self-governance itself. Josh Hammer's latest book is 'Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West.' This article was produced in collaboration with Creators Syndicate. @josh_hammer If it's in the news right now, the L.A. Times' Opinion section covers it. Sign up for our weekly opinion newsletter. This story originally appeared in Los Angeles Times.
Arabian Post
16-05-2025
- Business
- Arabian Post
Judge Dismisses SEC and Ripple's Bid to Halve Penalty
A U.S. federal judge has rejected a joint motion by the Securities and Exchange Commission and Ripple Labs to reduce the company's penalty from $125 million to $50 million, labelling the request as 'procedurally improper' and failing to meet the standards set by Rule 60 of the Federal Rules of Civil Procedure. Judge Analisa Torres of the Southern District of New York, who has presided over the case since its inception in 2020, stated that while the parties may refile the motion, such relief is rarely granted and must serve the public interest. The court emphasized that any modification to a final judgment requires a compelling justification, which was not adequately presented in the joint motion. The original penalty stemmed from Ripple's sale of XRP tokens to institutional investors, which the court determined violated federal securities laws. The SEC had initially sought a $2 billion penalty, but Judge Torres imposed a significantly lower fine of $125 million, citing the absence of fraud or intentional misconduct in Ripple's actions. Ripple and the SEC had reached a settlement agreement in March 2025, wherein Ripple would pay $50 million, and the remaining $75 million held in escrow would be returned to the company. Both parties agreed to drop their respective appeals, and the SEC indicated its intention to request the lifting of the injunction previously imposed on Ripple. However, the court's recent decision underscores the importance of adhering to procedural rules when seeking to alter a final judgment. Rule 60 allows for relief from a final judgment under specific circumstances, such as newly discovered evidence or fraud, none of which were convincingly demonstrated in the joint motion. See also Bitcoin Breaks $100,000 Barrier Amid Market Euphoria The ruling also highlights the judiciary's role in maintaining the integrity of legal proceedings and ensuring that any modifications to court orders are justified and in the public interest. The court's insistence on procedural compliance serves as a reminder that settlements and agreements between parties must still align with legal standards and protocols. As the case continues to unfold, the crypto industry watches closely, recognizing the broader implications for regulatory clarity and the enforcement of securities laws in the rapidly evolving digital asset landscape. The outcome of this case may set precedents for how similar cases are handled in the future, particularly concerning the classification and sale of digital assets. Arabian Post – Crypto News Network
Time of India
05-05-2025
- Business
- Time of India
Adani Group stocks surge up to 14% on reports of Gautam Adani's representatives meeting Trump officials
Adani Group stocks rally (AI image) Adani Group stocks today: Adani Group stocks on Monday saw significant gains of up to 14% after reports emerged of meetings between Gautam Adani representatives and US President Donald Trump 's administration officials. The discussions centred on seeking dismissal of criminal charges in a bribery investigation, as reported by Bloomberg News. The market response saw Adani Enterprises shares increase by 8.5%, whilst Adani Total Gas recorded a 14% surge. Other group companies, including Adani Ports, Adani Power, Adani Energy Solutions, and Adani Green Energy , witnessed gains ranging from 7% to 10%. Additionally, Ambuja Cements and ACC showed improvements of up to 3%. Bloomberg reported that these discussions, which were initiated earlier this year, have intensified recently. A resolution could potentially be reached in the upcoming month if current progress continues. The Adani team's position suggests that the prosecution does not align with the current administration's priorities. In November, US authorities filed charges against Gautam Adani and his nephew, Sagar Adani, regarding alleged bribery in Indian power supply contracts and misleading US investors during fundraising activities. The SEC summoned both individuals, citing allegations of paying substantial bribes to Indian officials whilst misrepresenting antibribery compliance during Adani Green Energy's $750 million bond offering. Reuters reported that the US Securities and Exchange Commission had sought assistance from India's Ministry of Law and Justice in investigating Gautam Adani and Sagar Adani regarding alleged securities fraud and a $265 million bribery scheme. Federal prosecutors in Brooklyn previously revealed an indictment accusing Adani of official bribery to secure electricity purchases from Adani Green Energy, whilst providing misleading information to US investors about the company's anti-corruption practices. The Adani Group maintains that these allegations are "baseless" and has stated its intention to pursue "all possible legal recourse." The alleged bribes were intended to obtain profitable solar power agreements, expected to generate $2 billion in profits across two decades. The legal notice stated: "Within 21 days after service of this summons on you (not counting the day you received it)... you must serve on the plaintiff (SEC) an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure." The notice additionally specified that non-response would result in a default judgement, as reported by PTI. Stay informed with the latest business news, updates on bank holidays and public holidays . AI Masterclass for Students. Upskill Young Ones Today!– Join Now
Time of India
05-05-2025
- Business
- Time of India
Adani Group stocks rally up to 7% after Gautam Adani's team meets Trump officials over US bribery case
Adani Group stocks surged up to 7% on Monday, May 5, after representatives of billionaire Gautam Adani and his companies reportedly met officials from US President Donald Trump's administration to seek dismissal of criminal charges in a bribery probe, Bloomberg News reported, citing sources. Following the development, shares of Adani Enterprises rose 5.7%, while Adani Total Gas surged nearly 7%. Adani Ports , Adani Power , Adani Energy Solutions , and Adani Green Energy also gained between 4–5%. Meanwhile, Ambuja Cements and ACC added up to 2%. According to Bloomberg, the discussions—which began earlier this year—have gained momentum in recent weeks and could lead to a resolution in the coming month if progress continues. Adani's team is reportedly arguing that the prosecution does not align with Trump administration priorities and should be reconsidered. In November, US authorities indicted Adani and his nephew, Sagar Adani, alleging that they paid bribes to secure Indian power supply contracts, and misled U.S. investors during fund raises. The SEC summoned Adani and his nephew, alleging they paid millions in bribes to Indian officials while misrepresenting antibribery compliance during a $750 million Adani Green Energy bond offering. Previously, the US Securities and Exchange Commission (SEC) had requested assistance from India's Ministry of Law and Justice in its investigation of Gautam Adani and his nephew Sagar Adani over alleged securities fraud and a $265 million bribery scheme, reported Reuters citing a court filing. Last year, federal prosecutors in Brooklyn unsealed an indictment accusing Adani of bribing Indian officials to convince them to buy electricity produced by Adani Green Energy , a subsidiary of his Adani Group conglomerate, and then misleading U.S. investors by providing reassuring information about the company's anti-corruption practices. Adani Group has called the allegations "baseless" and vowed to seek "all possible legal recourse." What is the bribery case? The US Securities and Exchange Commission had in its indictment said that Gautam Adani, Sagar Adani and six others paid $265 million in bribes to Indian state government officials between 2020 and 2024. The payments were reportedly made to secure lucrative solar power contracts projected to yield $2 billion in profits over 20 years. 'Within 21 days after service of this summons on you (not counting the day you received it)... you must serve on the plaintiff (SEC) an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure," the notice stated. It also warned, "If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint,' according to the PTI report. The SEC claims Adani Green Energy raised $2 billion from American and foreign investors based on false statements. 'Adani Green and the defendants also emphasised to underwriters and potential investors that Adani Green had implemented robust anti-bribery and anticorruption processes and that Adani Green was a leader in India in good corporate governance. None of this was true," the SEC said. The DoJ alleges the company concealed ongoing bribery allegations while raising funds from American investors, violating the US Securities Act. ( Disclaimer : Recommendations, suggestions, views and opinions given by the experts are their own. These do not represent the views of the The Economic Times)
Reuters
02-05-2025
- Politics
- Reuters
Admissibility of Non-US Evidence at Trial in the US
Evidence must fulfill certain requirements before it is admissible at trial in a US federal court. When a trial involves a domestic dispute where parties have obtained discovery through standard federal procedures, the admissibility of the evidence is generally established through the testimony of witnesses located in the US. However, in a trial involving an international dispute relying on evidence obtained from a foreign country, the question of admissibility can be more complicated. A party may not be able to call witnesses located abroad to establish admissibility because they are generally beyond the subpoena power of a US court and the expense and time associated with calling foreign witnesses may make it impractical to do so. Therefore, when seeking to introduce evidence obtained abroad, counsel may wish to explore alternate means of admitting evidence. This article examines provisions from the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) that may best serve litigants trying to establish the admissibility of evidence obtained abroad without the live testimony of witnesses, including the rules addressing: Exceptions to the rule against hearsay. The authentication of foreign public documents and records. The introduction at a hearing or trial of translations of evidence obtained from a foreign country. The introduction of deposition transcripts as evidence at trial. (For the complete version of this resource, which includes information on how to obtain the required certification when seeking to admit self-authenticating documents at a hearing or trial, see Admissibility of Non-US Evidence at Trial in the US on Practical Law.) Exceptions to the Rule Against Hearsay Because of the difficulty of having a witness located abroad appear to testify at a trial in the US, counsel may have to rely on materials constituting hearsay to establish their case. Hearsay is a statement, other than one made by the declarant while testifying at a hearing or trial, offered in evidence to prove the truth of the matter asserted (FRE 801(c)). Hearsay evidence is inadmissible at trial unless it falls under one of the exceptions specified in the FRE. The exceptions to the rule against hearsay that most affect the introduction of documents, records, and reports originating from abroad include those under: FRE 801(d)(2) (opposing party's statement). FRE 803 (exceptions independent of the witness's availability). FRE 804 (statements against interest). FRE 807 (residual hearsay exception). (For more on the rule against hearsay, see Evidence in Federal Court: Overview, Determining Hearsay Flowchart (Federal), and Hearsay Exclusions and Exceptions Flowcharts (Federal) on Practical Law.) Opposing Party's Statement The federal rules provide that relevant statements, including those obtained abroad, offered against an opposing party are not hearsay and are admissible when the statement: Was made by the opposing party in an individual or representative capacity. Is one that the opposing party manifested that it adopted or believed to be true. Was made by a person whom the opposing party authorized to make a statement on the subject matter of the statement. Was made by the opposing party's agent or employee on a matter within the scope of the agency or employment relationship while the relationship existed. Was made by the opposing party's co-conspirator during and in furtherance of the conspiracy. (FRE 801(d)(2).) When a party stands in the shoes of a declarant or a declarant's principal, hearsay statements by the declarant or principal are admissible against the party (FRE 801(d)(2); see also 2024 Advisory Committee's Notes to FRE 801). These statements, even when included in documents or deposition testimony obtained abroad, have been admitted into evidence in federal courts (Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 412-13 (6th Cir. 2006), abrogated on other grounds, A.K. by and Through Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625, 630 (6th Cir. 2020) (citing Shinseki v. Sanders, 556 U.S. 396, 409-11 (2009))). Statements falling under this exception do not have to be against the party's interest when made (see Statements Against Interest below) and do not require the laying of a preliminary foundation before being introduced into evidence. The opposing party that made the statement did not have to possess personal knowledge of the matter admitted. In fact, even if the opposing party's statement is an opinion, it is admissible under FRE 801(d)(2). Additionally, the admissibility of an opposing party's statement is not affected by the declarant's availability or unavailability or whether the witness testifies. While statements falling under the categories above are admissible as exceptions to the rule against hearsay, the statements themselves do not substantively establish: The authority given to a declarant by the opposing party to make a statement on the subject matter of the statement. The existence of an agency or employment relationship. The existence of a conspiracy. (FRE 801(d)(2).) Exceptions Independent of Witness Availability FRE 803 specifies several exceptions to the rule against hearsay that may apply regardless of the witness's availability. These exceptions may be particularly useful when litigating international disputes where the custodian or creator of the evidence cannot be called to testify at trial. The categories of documents that are admissible under this exception include: Business records. Public records and reports. Public records of vital statistics. Statements in ancient documents. Final judgments of previous convictions. Testimony or certifications regarding the absence of records. Business Records A business record or other record of a regularly conducted activity is admissible at trial as an exception to the rule against hearsay if: The record was made at or near the time of the transaction or other event, or from information that was transmitted, by someone with knowledge. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit. Making the record was a regular practice of that activity. (FRE 803(6).) These conditions may be shown by: The testimony of the custodian or another qualified witness. A certification that complies with FRE 902(12) (see Authenticating Foreign Documents Under Federal Rules below). A statute permitting certification. (FRE 803(6).) To be admissible, neither the source of information nor the method or circumstances of preparing the business record may indicate a lack of trustworthiness (FRE 803(6)). Additionally, if relying on a certification under FRE 902(12), the certification accompanying the business record must be signed in a way that, if the certification is false, the individual certifying the record would be subject to a criminal penalty in the country where the certification was signed. The party submitting the evidence must also provide the opposing party with reasonable written notice of the intent to offer the record and provide the record and certification for inspection so that the party has a fair opportunity to challenge them. (FRE 902(12).) (For the complete version of this resource, which includes more on obtaining the required certification, see Admissibility of Non-US Evidence at Trial in the US on Practical Law.) This exception may be particularly useful when introducing evidence such as Swiss bank records because they are records of regularly conducted activities maintained as a regular practice of business (Melridge, Inc. v. Heublein, 125 B.R. 825, 830 (D. Or. 1991)). Public Records and Reports A public record is admissible as an exception to the rule against hearsay if neither the source of information nor other circumstances indicate a lack of trustworthiness, and the record sets out: The office's activities. A matter observed while under a legal duty to report but not including a matter observed by law enforcement personnel in a criminal case. In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation, such as a police investigation. (FRE 803(8).) The public records and reports exception includes foreign public records and reports, such as notices of arrest or investigative reports prepared by foreign police (Mike's Train House, Inc., 472 F.3d at 412; see also Amica Life Ins. Co. v. Barbor, 488 F. Supp. 2d 750, 756 (N.D. Ill. 2007)). Even records not originating from a foreign government may qualify under this exception. For example, the United Nations and the Organisation for Economic Co-operation and Development are both considered public offices or agencies within the rule (Alinejad v. Islamic Republic of Iran, 2023 WL 4684929, at *17 (D.D.C. July 6, 2023); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1186-87 (E.D. Pa. 1980)). Public Records of Vital Statistics Public records of vital statistics from outside the US are admissible as an exception to the rule against hearsay. Records of vital statistics include: Marriage certificates. Birth certificates. Death certificates. (FRE 803(9); see United States v. Palomares-Munoz, 5 F. App'x 709, 711 (9th Cir. 2001).) Statements in Ancient Documents Statements in documents prepared before 1998 are admissible as exceptions to the rule against hearsay if their authenticity is established (FRE 803(16); see Authenticating Foreign Documents Under Federal Rules below). Final Judgments of Convictions Evidence of a final judgment of a conviction is admissible as an exception to the rule against hearsay if: The judgment was entered after a trial or guilty plea, but not a nolo contendere plea. The conviction was for a felony. The evidence is admitted to prove any fact essential to the judgment. When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. (FRE 803(22).) This type of evidence is admissible even if there is an appeal pending in the case that may affect the judgment (FRE 803(22)). Absence of a Record Testimony or a certification that complies with FRE 902 stating that a diligent search failed to disclose a public record or statement is admissible as an exception to the rule against hearsay. This testimony or certification is admissible to prove either: The record or statement does not exist. A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind. (FRE 803(10).) Statements Against Interest A statement against a declarant's interest may be admissible as an exception to the rule against hearsay if the declarant is unavailable (FRE 804(b)(3)). A statement is against the declarant's interest if it is both: A statement that, when made, was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability that a reasonable person in the declarant's position would have made the statement only if the person believe it to be true. Supported by corroborating circumstances that clearly indicate its trustworthiness considering the totality of circumstances in which it was made and any supporting or undermining evidence, if offered in a criminal case as a statement that tends to expose the declarant to criminal liability. (FRE 804(b)(3).) Under the FRE, a witness is considered unavailable if the declarant: Is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies. Refuses to testify about the subject matter despite a court order to do so. Testifies to not remembering the subject matter. Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness. Is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure the declarant's attendance or testimony. (FRE 804(a).) Residual Hearsay Exception The residual hearsay exception permits the introduction of necessary and trustworthy hearsay that does not fall within other hearsay exceptions. It provides a litigant with a catch-all standard under which they may be able to admit foreign evidence at trial that would otherwise be excluded (FRE 807(a)). A hearsay statement that is not admissible under a hearsay exception in FRE 803 or FRE 804 may still be admissible if: The court determines the statement has sufficient guarantees of trustworthiness after considering: the totality of the circumstances under which the statement was made; and any independent evidence corroborating the statement. The statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. (FRE 807(a).) A statement is admissible under the residual hearsay exception only if the proponent of the evidence provides the opposing party with reasonable notice of the intent to offer the statement into evidence so that the opposing party has a fair opportunity to evaluate the statement. The notice must: The residual hearsay exception permits the introduction of necessary and trustworthy hearsay that does not fall within other exceptions. It provides a litigant with a catch-all standard under which they may be able to admit foreign evidence at trial that would otherwise be excluded. Examples of the types of foreign documents that have been admitted under the residual hearsay exception include: Bank records from outside the US (United States v. Wilson, 249 F.3d 366, 376 (5th Cir. 2001), abrogated on other grounds, Whitfield v. United States, 543 U.S. 209 (2005); United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 465-68 (S.D.N.Y. 2017)). Communications from foreign governments to the US (United States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988)). Evidence that certain information was not included in the records of foreign governments (United States v. Cahill, 1988 WL 71239, at *3 (N.D. Ill. June 28, 1988)). Authenticating Foreign Documents Under Federal Rules Whether obtained under the FRCP, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention or HCCH 1970 Evidence Convention), or diplomatic channels, evidence obtained in a foreign country must be authenticated to be admissible at trial (FRE 901(a)). Evidence obtained from a foreign country may be authenticated if the party introducing it provides sufficient proof, either through testimony of a witness with knowledge or through expert opinion, so that a reasonable juror could find in favor of authenticity or identification (Yongo v. Immigr. & Naturalization Serv., 355 F.3d 27, 31 (1st Cir. 2004); see also Cabas v. Barr, 928 F.3d 177, 184-85 (1st Cir. 2019)). Additionally, both the FRCP and FRE provide that certain types of documents are self-authenticating, meaning they are admissible at trial without any accompanying extrinsic proof of their authenticity (FRE 902). Self-Authenticating Foreign Documents Under the FRCP The FRCP provide that foreign public records are self-authenticating when evidenced by: An official publication of the record. An attestation by an authorized person that is accompanied by either a final certification of genuineness or a certification under a treaty or convention to which the US and the country where the record is located are parties. (FRCP 44(a)(2)(A).) The final certification may be made by: A secretary of a US embassy or legation. A consul general, vice consul, or consular agent of the US. A diplomatic or consular official of the foreign country assigned or accredited to the US. (FRCP 44(a)(2)(B).) Additionally, if all parties have had a reasonable opportunity to investigate the authenticity and accuracy of a foreign record, the court may for good cause either: Admit an attested copy without the requisite final certification. Permit the record to be evidenced by an attested summary with or without final certification. (FRCP 44(a)(2)(C).) To show that no foreign record exists, a party must submit a written statement that a diligent search of designated records revealed no record or entry of a specified tenor. The court may admit this statement for good cause when evidenced by an attested summary with or without a final certification. (FRCP 44(b).) Self-Authenticating Foreign Documents Under the FRE FRE 902 provides a list of public documents that are self-authenticating, including the following related to foreign public documents and records: Documents signed or attested to by an authorized person. Copies of foreign public records. Foreign records of regularly conducted activities. Documents Signed or Attested to by an Authorized Person Public documents that purport to be signed or attested to by a person authorized by a foreign country's law to do so are self-authenticating documents. Documents may be submitted into evidence at trial if accompanied by a final certification confirming the genuineness of the signature and the official position of the person signing or attesting to the document. (FRE 902(3).) As under FRCP 44(a)(2)(B), the certification may be made by: Where certification of a public document is not provided, the document is treated as presumptively authentic by the court if: The opposing party was provided a reasonable opportunity to examine the document for authenticity and accuracy. There is good cause for the absence of a certification. (FRE 902(3)(A); United States v. McGowan, 552 F. App'x 950, 954 (11th Cir. 2014).) Evidence obtained from a foreign country may be authenticated if the party introducing it provides sufficient proof, either through testimony of a witness with knowledge or through expert opinion, so that a reasonable juror could find in favor of authenticity or identification. FRE 902(3) is derived from FRCP 44(a)(2), which provides that a foreign public record is admissible when accompanied by a certification. FRE 902(3), however, is broader in scope because it applies to both foreign public records and foreign public documents. Public documents consist of: Official papers. Documents on file in a public office. Publications printed by order of the government. Public records are records required or directed by law to serve as a memorial and evidence of something written, said, or done. Copies of Foreign Public Records FRE 902(4) provides that copies of public records, including foreign public records, are self-authenticating if the copies are certified as correct by either: The custodian or another person authorized to make the certification. A certificate that complies with FRE 902(3), a federal statute, or a rule prescribed by the US Supreme Court. Foreign Records of Regularly Conducted Activities In a civil case, certified foreign records of regularly conducted activities are self-authenticating and therefore admissible. Foreign records of regularly conducted activities submitted as self-authenticating evidence must meet the same conditions as business records submitted as exceptions to the rule against hearsay under FRE 803(6). Obtaining Required Certification for Foreign Documents The procedure to obtain final certification to authenticate public records obtained abroad depends on whether the country in which the records are located is a signatory to a treaty, such as the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (HCCH 1961 Apostille Convention or Hague Apostille Convention, 33 U.S.T. 883). Certification of documents is required under FRE 902(3) and FRCP 44(a)(2) for self-authentication purposes. The certification does not address the validity of the substantive content of evidence but rather the authenticity of the signature on the documents themselves or on a document to which the documents are attached (FRE 902(3)). If the country in which the records are located is not a signatory to a relevant treaty, a litigant will typically be required to obtain certification through diplomatic procedures. Obtaining certification through diplomatic procedures usually requires additional steps and review by the US embassy or consulate. (For the complete version of this resource, which includes more on how to obtain the required certification under the Hague Apostille Convention or through diplomatic channels, see Admissibility of Non-US Evidence at Trial in the US on Practical Law.) Translations of Foreign Evidence When producing foreign evidence in response to a discovery request, the producing party does not have the obligation to translate documents kept regularly in a foreign language (Nature's Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 441-42 (E.D.N.Y. 2011); see also In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 510 (1st Cir. 1982)). In practice, however, if seeking to introduce this evidence at trial, the parties need to exchange translations of the produced materials before introducing them into evidence. In document-intensive litigations, the parties will likely have translations made of key documents. The parties may assert objections to certain translations, such as where the parties use conflicting translations during a deposition or where documents are partially translated during a deposition by an interpreter. Whenever possible, courts want the parties to exchange translations and stipulate beforehand to the accuracy of any translations to be offered at trial. (For a model affidavit of translation used to authenticate the translation of documentary evidence originally in a foreign language submitted to the court, with explanatory notes and drafting tips, see Affidavit of Translation for US Proceedings on Practical Law.) Deposition Transcripts Involving Non-US Litigants Counsel involved in a case where a non-US litigant is a party will likely introduce necessary deposition testimony at trial because witnesses outside the US are beyond the scope of the court's subpoena power and, therefore, may be unavailable to testify in person. Even when the litigant is a corporate party that would be able to compel employees located outside the US to testify at trial, courts have permitted counsel for the US corporation to introduce deposition testimony (see Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 139 F.R.D. 368, 370 (N.D. Ind. 1991)). Both the FRCP and the FRE provide guidance on the introduction of deposition testimony of foreign witnesses at trial. Introducing Deposition Testimony Taken Abroad Under the FRCP Under the FRCP, all or part of a deposition transcript may be used against a party at a hearing or trial if: The party was present or represented at the deposition or had reasonable notice of it. The transcript would be admissible under the FRE if the deponent were present and testifying. (FRCP 32(a)(1).) Additionally, the deposition transcript may be used for purposes permitted by the FRCP, such as impeaching the testimony given by a deponent as a witness or for any other purpose permitted under the FRE (FRCP 32(a)(2)). A party may use the deposition transcript of any witness, whether or not a party, for any purpose if the witness is unavailable to testify (FRCP 32(a)(4)). A court will find that a witness is unavailable if the witness is located more than 100 miles from the place of the hearing or trial or outside the US, unless the court finds that the witness's absence was due to the action of the party seeking to submit the deposition testimony (FRCP 32(a)(4)(B)). Introducing Deposition Testimony Under the FRE Under the FRE, a deposition transcript is technically hearsay and therefore must be admissible under FRCP 32 or under one of the hearsay exceptions provided by the FRE. The FRE also provides that the unavailability of a witness permits the admission of deposition testimony as an exception to the rule against hearsay (FRE 804(b)(1)). What constitutes the unavailability of a witness under the FRE, however, differs from the FRCP. This is particularly important for the litigant seeking to admit foreign deposition testimony under the FRE, because the witness may be beyond the subpoena power of a US court and it may be impractical to secure the witness's appearance at a specific date and time for a hearing or trial in the US. Irina Kobylevsky joined Practical Law from Kruzhkov Russo PLLC, where she was counsel focusing on commercial and business litigation. Previously, she was an associate at Gusrae Kaplan Nusbaum PLLC and at Kaplan Fox & Kilsheimer LLP.
