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Issuance of Letters Rogatory: Final and Appealable

A letter rogatory is a formal request from a court in one country to a court in another country to perform some act. In the United States, common types of letters rogatory are requests for evidence, often document requests. Often, such letters rogatory seek documents from non-parties to the litigation. Upon receipt of a letter rogatory, a foreign court will decide whether to comply with the request.

What recourse does that non-party have if it believes the letter rogatory was issued in error? The United States Court of Appeals for the Third Circuit recently decided this issue, finding that the non-party has a right of immediate appeal.

In Arcelik v. DuPont, a U.S. District Judge in Delaware issued letters rogatory to Germany and India that sought to obtain testimony and documents from non-party TDK.  TDK appealed the issuance of the letters rogatory and DuPont opposed. Generally speaking – and with exceptions not relevant here – parties have a right to appeal only decisions that resolve the court case, also known as a final order. As many courts have held, pre-trial discovery orders are ordinarily not final orders.

Applying these principles, DuPont argued in Arcelik that the Appeals Court did not have jurisdiction to hear the appeal because it was not a final order, but rather merely a pretrial discovery order. DuPont contended that TDK could have the opportunity to object in courts in Germany and India to the requests in the letters rogatory and, therefore, there was no need for an appeal in the United States. The Third Circuit disagreed.

Noting that there was no direct precedent on this issue, the Appeals Court analyzed whether it had jurisdiction to hear the appeal. The Court reasoned that if it rejected TDK’s appeal here, an appeal of the order in the United States would be impossible.  That is because if courts in Germany and India were to grant the letters rogatory and order discovery, TDK would be subject to enforceable court orders in other countries.  The Court here, of course, would have no authority to hear an appeal from a court in Germany or India.

The Court therefore found that the District Court’s order was final and the Court of Appeals had jurisdiction to review the order.

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