Federal Judicial Center

International Litigation Guide

Mutual Legal Assistance Treaties and 

Letters Rogatory: A Guide for Judges

2014

Federal Judicial Center

International Litigation Guide

Mutual Legal Assistance Treaties and 

Letters Rogatory: A Guide for Judges

T. Markus Funk

Partner, Perkins Coie

Federal Judicial Center 

2014

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory 

mission to develop and conduct education programs for the judicial branch. While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the 

Board of the Federal Judicial Center.

Mutual Legal Assistance Treaties and Letters Rogatory Guide v

Contents

I. Introduction, 1

II. Mutual Legal Assistance Treaties, 5

A. Overview, 5

1. Scope, 5

2. Procedure, 6

3. Contents, 7

B. Statutory Scheme, 8

1. 28 U.S.C. § 1782, 8

2. 18 U.S.C. § 3512, 9

C. Judicial Review of Requests for Mutual Legal Assistance, 10

D. Legal Issues, 11

1. Dual Criminality, 11

2. Defense Access to Evidence Located Abroad, 12

3. Delay, 14

4. Statute of Limitations, 15

III. Letters Rogatory, 17

A. Outgoing, 17

B. Incoming, 18

C. Case Management, 19

1. Preliminary Information, 20

2. Essential Elements of a Letter Rogatory, 21

IV. Information Exchange Through Informal Channels, 23

V. Conclusion, 23

Appendix: U.S. Department of Justice Sample Letter Rogatory, 25

Recommended Resources, 27

Table of Authorities, 29

About the Author, 33

Mutual Legal Assistance Treaties and Letters Rogatory Guide 1

I. Introduction

The investigation of transnational criminal conduct, like the discovery process for 

transnational civil proceedings, often involves gathering evidence located in foreign countries. However, national sovereignty, international treaties, and international law preclude U.S. law enforcement officials from simply flying to a foreign 

country to conduct searches, question suspects, obtain documents, and proceed 

with arresting individuals for trial in the United States. In the absence of a foreign 

country’s agreement to cooperate in a criminal investigation or civil litigation, 

U.S. prosecutors or civil litigation counsel have limited options. For this reason, 

transnational cooperation and collaboration is an integral component of contemporary justice systems.1

For criminal proceedings, there are two primary means of obtaining evidence: 

a Mutual Legal Assistance Treaty (MLAT) and a letter rogatory. For civil proceedings, there is only a letter rogatory. Evidence obtained from abroad through 

these tools may be presented as part of court proceedings, requiring U.S. judges to 

be familiar with the legal issues implicated by transnational requests for assistance.2 In addition, judges should be aware that diplomacy, executive agreements, 

and information exchange through informal communications also play an important role in transnational criminal investigations and civil litigation.

3

Requests for transnational assistance requiring judicial oversight most commonly involve activities necessary for proceeding with a criminal investigation or 

prosecution or a transnational civil proceeding, such as serving subpoenas, locating evidence and individuals, and taking testimony. The court’s role in reviewing 

these requests will vary depending upon the applicable treaties and foreign law.4

 

1. See generally Lita M. Grace, The United States and Canadian Border: An Attempt to 

Increase Bi-Lateral Cooperation for the Prevention of Transnational Crime, Colum. J. Int’l Aff. 

(2012), available at http://jia.sipa.columbia.edu/united-states-and-canadian-border (last visited 

Jan. 13, 2014) (“[M]ultiple federal law enforcement agencies have begun to observe a statistical 

increase in the committing of transnational crime. The United States understands that it will take 

cooperation with more than one country in order to deter transnational crime . . . .”).

2. This guide focuses on obtaining evidence and assistance in criminal matters. The Hague 

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter the 

Hague Evidence Convention]—codified at 28 U.S.C. § 1781 under the auspices of the Hague 

Conference on Private International Law, and enforced since 1972—sets forth the procedures for

obtaining evidence and assistance in civil cases by its over fifty signatory countries (including the 

United States).

3. See generally Virginia M. Kendall & T. Markus Funk, Child Exploitation and Trafficking:

Examining the Global Challenges and U.S. Responses 231–34 (2012) (“Although formal MLATs, 

letters rogatory, and conventions may be the ‘public face’ of the world’s cooperative law 

enforcement community, a comparable amount of exchange of information occurs through triedand-tested informal [channels].”); Dan Webb et al., Corporate Internal Investigations § 13.08 

(2010) (noting the various informal channels of foreign-based evidence gathering in light of the 

“past two decades [of exploding] international trade and commerce”).

4. For example, 28 U.S.C. § 1782 expressly states that “a person may not be compelled to 

give his testimony or statement or to produce a document or other thing in violation of any 

applicable privilege,” which may include foreign privilege (see In re Commissioner’s Subpoenas, 

325 F.3d 1287, 1292 (11th Cir. 2003)). 
2 Mutual Legal Assistance Treaties and Letters Rogatory Guide

The MLAT is a treaty-based mechanism for seeking foreign law enforcement 

cooperation and assistance in support of an ongoing criminal investigation or proceeding.5 The MLAT process, and its benefits, are available only to government 

officials, typically prosecutors.

6 MLATs do not apply to civil litigants or proceedings. Supervising the execution of incoming MLATs—requests for assistance 

from foreign jurisdictions—requires direct federal district court oversight and involvement.7 In contrast, the courts play no part in initiating or processing outgoing MLAT requests. That is the province of the executive branch.

Letters rogatory, in contrast, have a considerably broader reach than MLATs:

they can be issued by U.S. federal and state courts as part of criminal, civil, and 

administrative proceedings, and they can be sent to U.S. federal and state courts 

by any foreign or international tribunal or “interested person.”8

Letters rogatory (also known as “letters of request” when presented by a nonparty “interested person”9

) were first used to facilitate cooperation among the 

courts of the several states of the Union. Today, the letter rogatory process is used 

internationally and is codified at 28 U.S.C. §§ 178110 and 1782 (the “Judicial 

Assistance Statute”).

11

Letters rogatory are available to prosecutors, defendants, and civil litigants 

once formal proceedings have commenced; they typically cannot issue during the 

 

5. See generally U.S. Department of State, 7 Foreign Affairs Manual [hereinafter FAM] 

§ 962.1, www.state.gov/m/a/dir/regs/fam/ (“MLATs have become increasingly important. They 

seek to improve the effectiveness of judicial assistance and to regularize and facilitate its 

procedures.”).

6. See id. § 962.5.

7. However, state courts do not help in the processing of incoming MLAT requests. If 

evidence located abroad is needed as part of a prosecution in state courts, local prosecutors may

enlist the MLAT process and work with the foreign judicial system. See Morgenthau v. Avion 

Res. Ltd., 49 A.D.3d 50, 59, 849 N.Y.S.2d 223, 230 (2007). 

8. See 28 U.S.C. § 1782(a) (“The order may be made pursuant to a letter rogatory issued, or 

request made, by a foreign or international tribunal or upon the application of any interested 

person and may direct that the testimony or statement be given, or the document or other thing be 

produced, before a person appointed by the court.”). 

9. See generally In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 

870 F.2d 686, 687 (D.C. Cir. 1989) (involving a request by foreign government for information 

for use in underlying criminal investigation).

10. Title 28 U.S.C. § 1781(a) provides that the U.S. State Department is “empowered” to 

(1) use formal channels to transmit letters rogatory from foreign or international tribunals to the 

appropriate U.S. court, and receive and return them after execution; and (2) transmit letters 

rogatory from U.S. courts to the applicable foreign or international tribunal, officer, or agency, and 

receive and return them after execution. Notably, section 1781(b) also expressly states that U.S. 

courts or foreign or international tribunals may skip the middleman (to wit, the U.S. State 

Department) and send their requests directly to the foreign tribunal, officer, or agency.

11. Title 28 U.S.C. § 1782(a) allows any litigant involved in a “proceeding in a foreign or 

international tribunal” to apply to a U.S. court to obtain evidence for use in the non-U.S. civil or 

criminal proceeding. This avenue for obtaining evidence from inside the United States is, thus, 

unrestricted in terms of (1) the type of proceeding, and (2) the foreign countries from which such 

requests can issue, and, therefore, overlaps—and, indeed, exceeds—the subject matter of the 

Hague Evidence Convention. What is more, unlike the Hague Evidence Convention, section 1782 

does not require the foreign litigant to first request the discovery from the non-U.S. tribunal.
Mutual Legal Assistance Treaties and Letters Rogatory Guide 3

investigative stage of criminal proceedings.12 The process for letters rogatory is 

more time-consuming and unpredictable than that for MLATs. This is in large 

part because the enforcement of letters rogatory is a matter of comity between 

courts, rather than treaty-based. 

For these reasons, prosecutors typically consider letters rogatory an option of 

last resort for accessing evidence abroad, to be exercised only when MLATs are 

not available. In contrast, because MLATs are never available to private parties, 

defense counsel and civil litigants must rely on letters rogatory to gather evidence 

located abroad. This disparity in access to evidence may result in delayed proceedings and cause the defense to raise access to justice issues. 

Requests from abroad (“incoming requests”) for legal assistance are directed 

to a country’s designated “central authority,” usually the Department (or Ministry) of Justice. The central authority, in turn, transmits the MLAT or letterrogatory-related communication to the appropriate court or government entity.

When a federal prosecutor appears before a U.S. district court requesting 

assistance on behalf of a foreign state or provides notice that the U.S. government 

will seek assistance from a foreign state, the prosecutor acts at the direction of the 

U.S. Department of Justice’s Office of International Affairs (OIA). OIA is the

United States’ central authority and de facto functional hub for all outgoing and 

incoming requests for transnational investigation and litigation assistance. Its 

attorneys process the paperwork for incoming and outgoing requests for assistance, issue guidance, and draft the form motions used by federal prosecutors. If 

the court has questions or concerns about the request, the judge may address them

directly to OIA, typically through the local United States Attorney’s Office.

This guide provides an overview of the statutory schemes and procedural matters that distinguish MLATs and letters rogatory, and it discusses legal issues that 

arise when the prosecution, the defense, or a civil litigant seeks to obtain evidence 

from abroad as part of a criminal or civil proceeding. Figure 1 is a chart that 

compares the two processes. The guide also discusses informal channels for 

information exchange in Part IV.

 

12. See In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d 

at 692 (suggesting that letters rogatory are available unless there is a reliable indication that there 

is a likelihood that proceedings will be instituted within a reasonable time); see also 28 U.S.C. 

§ 1782(a) (providing that, with the exception of criminal investigations, the section only covers 

“testimony or statement or . . . documents or other things for use in a proceeding in a foreign or 

international tribunal . . . .”) (emphasis added).
4 Mutual Legal Assistance Treaties and Letters Rogatory Guide

Figure 1. Comparison of an MLAT and a Letter Rogatory

Issue MLAT Letter Rogatory

Nature of instrument? Bilateral cooperation treaty Issued by state and federal 

courts as a matter of comity 

(and with the expectation of 

reciprocity)

Scope of use? The primary method of 

obtaining foreign evidence 

and other assistance

Available to all parties in 

criminal and civil matters

Nature of judicial 

involvement?

U.S. district courts 

supervise issuance and 

execution only of incoming 

requests

Federal and state judiciaries 

supervise issuance and 

execution of outgoing and 

incoming requests

Available to criminal 

defendants?

No (except pursuant to the 

first three MLATS the 

United States signed)

Yes; in fact, is the primary 

formal means for defendants 

to obtain foreign evidence

Available to civil litigants? No Yes

Available to prosecutors? Yes Yes

Must a case have been 

filed for assistance to be 

available?

No Yes

Available pre-indictment 

(during investigative 

phase)?

Yes No

Efficient method of 

obtaining evidence?

Relatively speaking, yes No, generally slow and 

cumbersome

Processed through 

diplomatic channels?

Always Almost always
Mutual Legal Assistance Treaties and Letters Rogatory Guide 5

II. Mutual Legal Assistance Treaties

A. Overview

MLATs are the principal vehicle through which law enforcement officials make 

transnational requests for assistance relating to evidence gathering and other law 

enforcement activities. They are available for use by law enforcement officials involved in criminal investigations and proceedings (or in some civil matters where 

the case is related to a criminal matter).13 MLATs are legally binding negotiated 

commitments. Nonetheless, courts review specific requests for assistance and may 

deny them if they fail to comply with applicable domestic law or procedure.

14

1. Scope 

MLATs provide for mutual cooperation between nations in the investigation and 

prosecution of transnational crime, and they do so through explicitly enumerated 

categories of law enforcement assistance unique to each treaty.15 The types of assistance MLATs usually provide for include the following:

• serving judicial or other documents;

• locating or identifying persons or things;

• taking testimony;

• examining objects and sites;

• requesting searches and seizures;

• obtaining documents or electronic evidence;

• identifying, tracing, and freezing or confiscating proceeds or instrumentalities of crime and/or other assets;

• transferring persons in custody for testimonial purposes or to face charges, 

as in extradition cases;

• freezing assets; and

 

13. See generally 7 FAM § 962.5, supra note 5.

14. See generally United States v. Rommy, 506 F.3d 108 (2d Cir. 2007) (holding that “when 

securing evidence without MLAT authorization, foreign government officials lacking diplomatic 

immunity must conduct themselves in accordance with applicable ‘domestic laws.’”); see also

Kimberly Prost, Breaking Down the Barriers: International Cooperation in Combating Transnational Crime, http://www.oas.org/juridico/mla/en/can/en_can_prost.en.html (last visited Jan. 13, 

2014) (“For mutual assistance to succeed, the operative principle must be that requests will be 

executed in accordance with the law of the requested state and to the extent not prohibited by that 

law, will be provided in the manner sought by the requesting state. In other words, while 

authorities in a requested state must always meet the standards prescribed by domestic law, unless 

the rendering of assistance in the form sought would constitute a violation of that law, it should be 

provided.”).

15. See In re Commissioner’s Subpoenas, 325 F.3d 1287, 1291 (11th Cir. 2003) (“Despite the 

apparent versatility of 28 U.S.C. § 1782, law enforcement authorities found the statute to be an 

unattractive option in practice because it provided wide discretion in the district court to refuse the 

request and did not obligate other nations to return the favor that it grants. MLATs, on the other 

hand, have the desired quality of compulsion, as they contractually obligate the two countries to 

provide to each other evidence and other forms of assistance needed in criminal cases while 

streamlining and enhancing the effectiveness of the process for obtaining needed evidence.”).
6 Mutual Legal Assistance Treaties and Letters Rogatory Guide

• any other assistance permitted by the foreign law and specified in the 

applicable treaty.

16

Most MLATs also include a catchall provision authorizing the transfer of any evidence not prohibited by the requested nation’s law.17

The United States has bilateral MLATs in force with every European Union 

member state, many of the Organization of American States member states, and 

many other countries around the world. An MLAT is negotiated by the U.S. Department of Justice in cooperation with the U.S. Department of State. The Secretary of State formally submits the proposed MLAT, typically together with a report detailing the function and purposes of the MLAT’s key provisions,18 to the 

President of the United States for transmittal to the U.S. Senate. Following the 

advice and consent of the Senate, the President signs the treaty and directs the 

Secretary of State to take the actions necessary for the treaty to enter into force. 

Once signatory countries have complied with entry-into-force provisions, the 

MLAT becomes binding under international law.19

In February 2010, the United States and the European Union (through its fiftysix member countries) entered into a historic MLAT. This multiparty MLAT 

seeks to enhance and modernize cross-border law enforcement and judicial 

cooperation. The terms of the E.U.–U.S. agreement include standard areas of 

assistance, such as identifying financial account information, finding and seizing 

evidence, and taking testimony. This MLAT also includes provisions addressing

bank secrecy, joint criminal investigations, use of videoconferencing for taking 

testimony, and assistance to administrative agencies, such as the Securities and 

Exchange Commission and the Federal Trade Commission.

20

2. Procedure

When a foreign country requests assistance pursuant to an MLAT, the U.S. court 

must determine whether (1) the terms of the MLAT prescribe practices or procedures for the taking of testimony and production of evidence, (2) the Federal 

Rules of Procedure and Evidence apply, or (3) the MLAT requires some sort of a 

hybrid approach. It is also acceptable to follow specified practices and procedures 

of the requesting country—provided they are consistent with U.S. law, including 

the rules relating to privilege. MLATs executed in the United States must follow 

U.S. constitutional requirements, including the protection of Fourth Amendment21

 

16. See generally Hon. Virginia M. Kendall & T. Markus Funk, The Role of Mutual Legal 

Assistance Treaties in Obtaining Foreign Evidence, 40 A.B.A. Litig. J. 1, 1–3 (2014) (listing 

standard types of assistance).

17. David Luban et al., International and Transnational Criminal Law 376 (2009).

18. See, e.g., S. Exec. Doc. No. 109-14 (2006); S. Treaty Doc. No. 111-6 (2010). 

19. See, e.g., S. Exec. Doc. No. 110-14 (2008); see also U.S. Gov’t Accountability Office, 

GAO-11-730, Tax Administration: IRS’s Information Exchanges with Other Countries Could Be 

Improved Through Better Performance Information (2011).

20. Luban et al., supra note 17, at 386.

21. U.S. Const. amend. IV (providing freedom from “unreasonable searches and seizures”).
Mutual Legal Assistance Treaties and Letters Rogatory Guide 7

and Fifth Amendment22 rights. That said, U.S. legal standards do not apply to the 

seizure of evidence overseas when the foreign country is conducting the investigation independently and seizes evidence later introduced in a U.S. court,

23 nor 

does the Sixth Amendment right to counsel attach to civil depositions.

24

3. Contents

To assist the U.S. court in reviewing an incoming MLAT request, the following 

information is usually included (or should be made available by the assistant U.S.

attorney handling the matter):

Basic information

• the name of the authority conducting the investigation, prosecution, or 

other proceeding to which the request relates;

• a description of the subject matter and the nature of the investigation, 

prosecution, or proceeding, including the specific criminal offenses that relate to the matter;

• a description of the evidence, information, or other assistance sought; and

• a statement of the purpose for which the evidence, information, or other assistance is sought.

 

22. Id. amend. V. Witnesses deposed in the United States or in a foreign country retain the 

Fifth Amendment privilege against self-incrimination, regardless of whether they are U.S. citizens 

or foreign nationals. See generally In re Terrorist Bombings of South Africa, 552 F.3d 177, 199 

(2d Cir. 2008) (“[R]egardless of the origin—i.e., domestic or foreign—of a statement, it cannot be 

admitted at trial in the United States if the statement was ‘compelled.’ Similarly, it does not matter 

whether the defendant is a U.S. citizen or a foreign national: ‘no person’ tried in the civilian courts 

of the United States can be compelled ‘to be a witness against himself.’”) (citation omitted). See 

also United States v. Jefferson, 594 F. Supp. 2d 655, 670 n.25 (E.D. Va. 2009); David Cole, Are 

Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?, 25 Jefferson L. Rev.

367, 388 (2003) (analyzing the issue and finding that U.S. and foreign citizens enjoy the same 

general privileges and protections under the U.S. Constitution).

23. United States v. Behety, 32 F.3d 503 (11th Cir. 1994) (holding that U.S. authorities’ 

presence during Guatemalan officials’ search of a U.S. vessel and action of tipping Guatemalan 

authorities that the vessel may contain cocaine insufficient to constitute “substantial participation,” 

which would have triggered the Fourth Amendment reasonableness standard for evaluating the 

search); In re Request for Assistance from Ministry of Legal Affairs of Trinidad & Tobago, 848 

F.2d 1151, 1156 n.12 (11th Cir. 1988) (abrogated on other grounds) (refusing to quash a subpoena 

the court issued pursuant to a request for legal assistance from a foreign government; the court 

“must decide whether the evidence would be discoverable in the foreign country before granting 

assistance”); United States v. Callaway, 446 F.2d 753 (3d Cir. 1971) (ruling that U.S. courts may 

exclude evidence gathered by foreign governments only (1) where there is joint action by both the 

U.S. and foreign governments, and (2) where solo actions by the foreign government “shock the 

conscience” of the U.S. court).

24. Civil depositions do not trigger the Sixth Amendment. See generally United States v. 

Hayes, 231 F.3d 663, 674 (9th Cir. 2000) (holding that the right to counsel had not attached, even 

after the government had sought to obtain material witness depositions for use at the defendant’s 

trial).
8 Mutual Legal Assistance Treaties and Letters Rogatory Guide

Assistance-specific details

• information concerning the identity and location of any person from whom 

evidence is sought;

• information concerning the identity and location of a person to be served, 

that person’s relationship to the proceeding, and the manner in which service is to be made;

• information on the identity and whereabouts of a person to be located;

• a precise description of the place or person to be searched and items to be 

seized;

• a description of the manner in which any testimony or statement is to be 

taken and recorded;

• a list of questions to be asked of a witness; and

• a description of any particular procedure to be followed in executing the 

request.

An MLAT request containing this information provides the district court with 

a general basis for evaluating the request for assistance. If necessary, the court 

may ask the assigned prosecutor to provide additional information (typically 

through OIA).

B. Statutory Scheme 

1. 28 U.S.C. § 1782

Originally enacted in the mid-nineteenth century to encourage reciprocal assistance with transnational litigation, the statute now codified at 28 U.S.C. § 1782 

permits federal courts to provide cross-border assistance via MLATs.25 It sets 

forth specific procedures courts and prosecutors must follow:

a) The district court of the district in which a person resides or is found may order him to 

give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted 

before formal accusation. . . . The order may prescribe the practice and procedure, which 

may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other 

thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the 

Federal Rules of Civil Procedure.26

Section 1782 allows any “interested person” from any country who is involved in a “proceeding in a foreign or international tribunal” to apply—whether 

through an MLAT or letter rogatory—to a U.S. court to obtain evidence for use in

that non-U.S. civil or criminal proceeding. Section 1782 is broader than the 

Hague Evidence Convention and does not require the foreign litigant to first re-

 

25. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247–49 (2004) 

(detailing the history of section 1782).

26. 28 U.S.C. § 1782(a).
Mutual Legal Assistance Treaties and Letters Rogatory Guide 9

quest the discovery from the non-U.S. tribunal.

27 Section 1782 gives courts discretion as to “whether, and to what extent, to honor a request for assistance.”28

2. 18 U.S.C. § 3512 

The Foreign Evidence Efficiency Act, codified at 18 U.S.C. § 3512, was enacted 

to help streamline the MLAT process, making it “easier for the United States to 

respond to requests by allowing them to be centralized and by putting the process 

for handling them within a clear statutory system.”29

The assistance contemplated by section 3512 includes, but is not limited to

(A) a search warrant, as provided under Rule 41 of the Federal Rules of Criminal 

Procedure;30

(B) a warrant or order for contents of stored wire or electronic communications or for 

records related thereto, as provided under section 2703 of this title;

(C) an order for a pen register or trap and trace device, as provided under section 3123 of 

this title; or

(D) an order requiring the appearance of a person for the purpose of providing testimony 

or a statement, or requiring the production of documents or other things, or both.31

To process the foreign request for assistance, the assistant U.S. attorney will 

review and approve the request, and then, pursuant to 18 U.S.C. § 3512, will file 

it with the U.S. district court

(1) in the district where the person who may be required to appear resides or is located or 

in which the documents or things to be produced are located;

(2) in cases in which the request seeks the appearance of persons or production of documents or things that may be located in multiple districts, in any one of the districts in 

which such a person, documents, or things may be located; or

(3) in any case, the district in which a related Federal criminal investigation or prosecution is being conducted, or in the District of Columbia.32

As it does under 28 U.S.C. § 1782, under 18 U.S.C. § 3512, the court has discretion over whether to issue the requested order.

33

 

27. See In re Premises Located at 840 140th Ave., NE, Bellevue, Wash., 634 F.3d 557, 571 

(9th Cir. 2011) (“We hold that requests for assistance via the U.S.–Russia MLAT utilize the 

procedural mechanisms of § 1782 without importing the substantive limitations of § 1782. In 

particular, the parties to the treaty intended that the district courts would not possess the normal 

‘broad discretion,’ conferred by § 1782, to deny requests for assistance.”).

28. See id. at 563.

29. 155 Cong. Rec. S6810 (daily ed. June 18, 2009) (statement of Sen. Whitehouse).

30. Note, however, that a district court’s authorization to issue search warrants under this 

section is subject to certain restrictions, namely, that the foreign offense for which the evidence is 

sought involves conduct that, if committed in the United States, would be considered an offense 

punishable by imprisonment for more than one year under federal or state law. 18 U.S.C. 

§ 3512(e) (2009).

31. 18 U.S.C. § 3512(a)(2) (2009).

32. Id. § 3512(a) & (c).

33. Id. § 3512(a)(1) (providing that “a Federal judge may issue such orders as may be 

necessary to execute a request from a foreign authority . . . .”) (emphasis added); § 3512(a)(2) 

(“Any order issued by a Federal judge pursuant to paragraph (1) may include the issuance of [nonexhaustive list of orders].”) (emphasis added). 
10 Mutual Legal Assistance Treaties and Letters Rogatory Guide

The application to provide the requested assistance, like all such filings, may 

be submitted ex parte and under seal.34 Section 3512 also permits the appointment 

of an outside individual—sometimes referred to as a “commissioner”

35—“to direct the taking of testimony or statements or of the production of documents or 

other things, or both.”

36 A commissioner may pursue requests in multiple judicial 

districts, eliminating the need for judges in different districts to appoint separate 

commissioners and otherwise duplicate their efforts.37 Section 3512 also permits 

judges to oversee and approve subpoenas and other orders (but not search warrants) outside of their district.

Under section 3512, federal judges continue to serve as gatekeepers for search 

warrants, wiretaps, and other methods of obtaining evidence, ensuring that the 

collection of requested foreign evidence meets the same standards as those required in U.S. cases (such as, for example, the probable cause standard, specificity in warrants, and protection of attorney–client, physician–patient, and other

recognized privileges).38

C. Judicial Review of Requests for Mutual Legal Assistance

Although there is a presumption in favor of honoring MLAT requests,

39 the district court must still review the terms of each request, checking that they comply

with the terms of the underlying treaty and comport with U.S. law.40 For example,

in United Kingdom v. United States,

41 appellants awaiting trial in England requested disclosure of law enforcement documents they claimed were requested by 

 

34. See generally Robert Timothy Reagan, Federal Judicial Center, Sealing Court Records 

and Proceedings: A Pocket Guide (2010) (noting the court’s wide discretion in whether to grant an 

ex parte motion to seal).

35. While the statute does not require the commissioner to be a lawyer or prosecutor, courts 

routinely appoint an assistant United States attorney to be the commissioner. See 18 U.S.C. 

§ 3512(b)(1) (“In response to an application for execution of a request from a foreign authority as 

described under subsection (a), a Federal judge may also issue an order appointing a person to 

direct the taking of testimony or statements or of the production of documents or other things, or 

both”) (emphasis added). See, e.g., United States v. Trustees of Boston College, 831 F. Supp. 2d 

435 (D. Mass. 2011) (appointing an assistant United States attorney as the commissioner); In re

Request from United Kingdom Pursuant to Treaty, No. 11-2511, 685 F.3d 1 (1st Cir. 2012) 

(same). 

36. 18 U.S.C. § 3512(b)(1), (2).

37. See id. § 3512(b)(2), (f).

38. See, e.g., 28 U.S.C. § 1782(a) (“A person may not be compelled to give his testimony or 

statement or to produce a document or other thing in violation of any legally applicable 

privilege.”). In re Request from United Kingdom Pursuant to Treaty Between Gov’t of U.S. & 

Gov’t of United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price,

718 F.3d 13 (1st Cir. 2013) (conducting a relevancy analysis of subpoenaed materials).

39. In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 571 (9th 

Cir. 2011) (“When a request for assistance under the MLAT arrives before a district court . . . 

almost all the factors already would point to the conclusion that the district court should grant the 

request.”).

40. See Kendall & Funk, supra note 16, at 2 (discussing the role of district courts as gatekeepers).

41. 238 F.3d 1312, 1315 (11th Cir. 2001), cert. denied sub nom. Raji v. United States, 122 S. 

Ct. 206 (2001).
Mutual Legal Assistance Treaties and Letters Rogatory Guide 11

British law enforcement officials pursuant to the U.S.–U.K. MLAT. The Eleventh 

Circuit denied the motion, finding that the underlying U.K. request for evidence 

did not conform to the specific protocol set forth in the treaty and, accordingly, no 

valid MLAT request had been made.

42

U.S. courts will also consider constitutional challenges to a request for legal 

assistance. Although such cases are rare, “a district court may not enforce a subpoena that would offend a constitutional guarantee,” such as a subpoena that 

would result in an “egregious violation of human rights.”43

D. Legal Issues

While the majority of requests for assistance pursuant to an MLAT proceed uneventfully, courts sometimes are called upon to resolve related legal issues, such 

as dual criminality, defense access to evidence located abroad, delay, and statute 

of limitations.

1. Dual Criminality 

Unlike extradition treaties enforced in U.S. courts, MLATs do not require dual 

criminality—that the offense for which the foreign state seeks assistance also constitutes a crime in the requested state. The utilitarian reason for this deviation 

from the norm is to facilitate responsiveness.

MLATs, after all, are intended to improve law enforcement cooperation between countries, and the United States’ law enforcement objectives often depend 

upon timely assistance from treaty signatories. The United States has committed 

to responding to requests under MLATs even if the doctrine of dual criminality 

exists as part of the requesting country’s domestic law.

44 This approach establishes a high standard of responsiveness, enabling the United States to “urge that 

foreign authorities respond to our requests for evidence with comparable speed.”45

Most MLATs expressly state that the dual criminality principle does not apply.

46

Some MLATS, however, are drafted to include limitations that are triggered if 

the requested assistance requires a court warrant or other compulsion and the 

underlying offense is not a crime in the requested country. In jurisdictions where 

domestic law requires dual criminality for international treaties, the MLAT is 

often drafted to include a nonexclusive list of covered offenses that allow for mutual legal assistance.

 

42. Id. at 1317.

43. In re Premises, 634 F.3d at 572.

44. United States v. Trustees of Boston College, 831 F. Supp. 2d 435, 450 (D. Mass. 2011) 

(aff’d in part sub nom.); In re Request from United Kingdom Pursuant to Treaty, No. 11-2511, 

685 F.3d 1 (1st Cir. 2012).

45. In re Request from United Kingdom Pursuant to Treaty, No. 11-2511, 685 F.3d 1 (1st Cir. 

2012).

46. In re Commissioner’s Subpoenas, 325 F.3d 1287, 1299 (11th Cir. 2003). See also sources 

cited at supra note 3.
12 Mutual Legal Assistance Treaties and Letters Rogatory Guide

2. Defense Access to Evidence Located Abroad

The MLAT process was created to facilitate international cooperation in the investigation and prosecution of criminal cases. Each treaty’s terms apply only to 

the contracting nations’ parties, and the benefits conferred are available only to 

the governmental officials of those nations.

The first three MLATs signed by the United States—those with Switzerland,

47

Turkey, and the Netherlands—include provisions granting defense counsel permission to access evidence pursuant to an MLAT. Subsequent MLATs do not include comparable provisions.

48

Thus, access to evidence through an MLAT is restricted to prosecutors, government agencies that investigate criminal conduct, and government agencies that 

are responsible for matters ancillary to criminal conduct, including civil forfeiture.

In fact, the vast majority of MLATs signed by the United States explicitly exclude

non-government access to U.S. processes.

49 Criminal defendants, like civil litigants, must use letters rogatory to secure evidence located abroad, a process that 

is less efficient and less reliable.50

Federal prosecutors increasingly rely on extraterritoriality provisions in federal law, such as those incorporated into the Foreign Corrupt Practices Act,51 to

bring cases in which much of the physical evidence and most potential witnesses 

are located overseas. Because the MLAT process is only available to the prosecution, the defendant’s ability to collect and present evidence is limited.

 

47. In a case involving the MLAT between the United States and Switzerland, defense 

counsel requested the government’s assistance with securing witness testimony via the MLAT 

process. Agreeing with the defense argument that the proffered evidence was important to its case, 

the court ordered the Department of Justice to provide the requested assistance. United States v. 

Sindona, 636 F.2d 792 (2d Cir. 1980). The reasoning of this case is limited to MLATs that provide 

for defense access to evidence abroad, such as those with Switzerland, Turkey, and the 

Netherlands. All other MLATs include language explicitly restricting defense access. See also L. 

Song Richardson, Convicting the Innocent, 26 Berkeley J. Int’l L. 62, 84 (2008); United States v. 

Chitron Electronics Co., 668 F. Supp. 2d 298, 306 (D. Mass. 2009) (discussing U.S.–China 

MLAT).

48. United Kingdom v. United States, 238 F.3d 1312, 1317 (11th Cir. 2001), cert. denied sub 

nom. Raji v. United States, 122 S. Ct. 206 (2001).

49. See United States v. Duboc, 694 F.3d 1223, 1229 (11th Cir. 2012) (“[T]here is a 

presumption that international agreements do not create private rights or private causes of action in 

domestic courts, even when the agreement directly benefits private persons. This presumption and 

the plain terms of the MLAT show that Duboc, as a private party, may not use the MLAT as a 

defense to the forfeiture of the Thailand condos.”) (citing United States v. Valencia-Trujillo, 573 

F.3d 1171, 1180–81 (11th Cir. 2009)).

50. See generally United Kingdom, 238 F.3d at 1314 (explaining that there is no provision for 

private parties, such as individual criminal defendants in the English (or American) courts, to 

request the production of information). 

51. 15 U.S.C. §§ 78dd-1, et seq. See generally T. Markus Funk & Bo Dul, Regrouping and 

Refocusing: 2013 FCPA Year-In-Review and Enforcement Trends for 2014, Bloomberg BNA Sec. 

Reg. & L. Rep., 46 SRLR 121 (Jan. 20, 2014).
Mutual Legal Assistance Treaties and Letters Rogatory Guide 13

Commentators have noted that the lack of compulsion parity between prosecutors and the defense in obtaining foreign evidence has due process implications.

52

Counsel for the defense may argue that a vital piece of exculpatory evidence is 

located overseas and the MLAT process is the only realistic way of obtaining it.

Counsel may request that the government provide assistance with accessing this 

evidence through the MLAT process, and if the prosecution refuses, counsel may 

petition the court for relief.

53 However, few, if any, courts have been receptive to 

such petitions in the absence of language in the MLAT that provides for defense 

access to evidence abroad.

In United States v. Mejia, the defendants were involved in a cross-border drug 

trafficking organization run out of Costa Rica. A grand jury in the District of 

Columbia indicted the Colombian nationals, charging them with conspiracy to 

distribute cocaine.54 Panamanian authorities arrested two of the defendants, turning the men over to the custody of the United States. During pretrial proceedings,

the two defendants petitioned the trial court to require that the government produce tape recordings made during the Costa Rican trial of one of their alleged 

(non-testifying) coconspirators. The defendants conceded that the tapes were not 

within the U.S. government’s “possession, custody, or control” within the meaning of Rule 16, but argued that the prosecution had “the power” to secure the trial 

tapes or transcripts from the Costa Rican government via the U.S.–Costa Rican 

MLAT.55 The trial court rejected the defendants’ request, ruling that the government had no obligation to use its “best efforts” through the MLAT to obtain the

tapes.

56

 

52. See Daniel Huff, Witness for the Defense: The Compulsory Process Clause As a Limit on 

Extraterritorial Criminal Jurisdiction, 15 Tex. Rev. L. & Pol. 129, 160–61 (2010); Robert Neale 

Lyman, Compulsory Process in a Globalized Era: Defendant Access to Mutual Legal Assistance 

Treaties, 47 Va. J. Int’l L. 261, 273 (2006); Richardson, supra note 47, at 84–85; Ian R. Conner, 

Peoples Divided: The Application of United States Constitutional Protections in International 

Criminal Law Enforcement, 11 Wm. & Mary Bill Rts. J. 495, 503–04 (2002); Frank Tuerkheimer, 

Globalization of U.S. Law Enforcement: Does the Constitution Come Along?, 39 Hous. L. Rev.

307, 357–73 (2002). See also United States v. Theresius Filippi, 918 F.2d 244, 247 (1st Cir. 1990) 

(implicating the Due Process Clause by not requesting Special Interest Parole from the INS). 

53. If the Department of Justice refuses to use an MLAT to execute a Federal Rule of 

Criminal Procedure 15 court order authorizing a criminal defendant to take a deposition abroad 

(instead telling the defendant to seek enforcement of the order through a letter rogatory), the 

defendant may contend that the refusal violates the defendant’s rights under the Compulsory 

Process Clause of the Sixth Amendment. Defendants may also cite the International Covenant on 

Civil and Political Rights, to which the United States became a party in 1992. The Covenant 

provides, in part: “In the determination of any criminal charge against him, everyone shall be 

entitled to the following minimum guarantees in full equality . . . . To examine or have examined, 

the witnesses against him and to obtain the attendance and examination of witnesses on his behalf 

under the same conditions as witnesses against him.” International Covenant on Civil and Political 

Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 (referring 

to art.14, sec. 3).

54. United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006).

55. Id. at 444.

56. Id.
14 Mutual Legal Assistance Treaties and Letters Rogatory Guide

On appeal, the D.C. Circuit found that the government satisfied its sole 

obligation, compliance with Rule 16. The court did note that, pursuant to 28 

U.S.C. § 1781(b)(2), the defendants “could have asked the district court to issue 

letters rogatory to the Costa Rican court to obtain any tapes or transcripts that may 

have existed, [but did] not do so.”57 This language may leave open the argument 

that had the defendants first sought the requested evidence using the letter rogatory process, the outcome (or at least the analysis) might have been different.58

Courts have consistently held that MLATs create no private rights permitting

an individual defendant to force the government to request evidence pursuant to 

an MLAT, even when the defendant invokes constitutional concerns.

59 In United 

States v. Jefferson, Jefferson argued that the Sixth Amendment required the government to utilize the MLAT process to obtain depositions for the defense.

60 The 

district court disagreed, stating that “it is clear that defendant is not entitled to 

make use of the MLAT and that this result does not violate defendant’s constitutional right to compulsory process.”

61

Likewise, the Eleventh Circuit rejected a challenge to a forfeiture order by a 

defendant who asserted that the government did not follow the provisions of the 

MLAT between Thailand and the United States.62 The court noted the “presumption that international agreements do not create private rights” and held that the 

defendant, as a private party, could not use the MLAT as a defense to the forfeiture.63 The First Circuit similarly rejected an argument that an MLAT allowed for 

a private right of action, citing both the language of the U.S.–U.K. MLAT itself

and the fact that other courts have “uniformly” ruled that no such private right 

exists under the language of similar MLATs.64

3. Delay

Obtaining evidence through the use of formal MLATs between nations can be 

time-consuming and may result in government requests for additional time. The 

main difficulties are the required level of legal formality and the availability of 

resources, such as staff and funding. In more complex cases, as well as those involving technology, another potential cause of delay is the limited capacity of 

 

57. Id. at 445.

58. See id. (citing United States v. Sensi, 879 F.2d 888, 899 (D.C. Cir. 1989)). But see

Euromepa v. R. Esmerian, Inc., 51 F.3d 1095, 1098 (2d Cir. 1995) (declining to engraft a “quasiexhaustion requirement” into section 1782 that would force litigants to seek “information through 

the foreign or international tribunal” before requesting discovery from the district court); In re

Veiga, 746 F. Supp. 2d 8, 24 (D.D.C. 2010) (same).

59. See, e.g., United States v. Jefferson, 594 F. Supp. 2d 655, 674 (E.D. Va. 2009).

60. Id. at 673.

61. Id.

62. United States v. Duboc, 694 F.3d 1223, 1229 (11th Cir. 2012), cert. denied, 133 S. Ct. 

1278, 185 L. Ed. 2d 214 (U.S. 2013), reh’g denied, 133 S. Ct. 2051, 185 L. Ed. 2d 908 (U.S. 

2013).

63. Id. at 1229–30.

64. In re Request from United Kingdom Pursuant to Treaty, No. 11-2511, 685 F.3d 1 (1st Cir. 

2012), cert. denied, 133 S. Ct. 1796, 185 L. Ed. 2d 856 (U.S. 2013).
Mutual Legal Assistance Treaties and Letters Rogatory Guide 15

some foreign law enforcement agencies to conduct the sophisticated forensic

analysis needed to comply with an MLAT request.65

In other cases, the foreign country may simply have more limited experience 

with the evidence-gathering process. United States v. $93,110.00 in U.S. Currency,

66 for example, involved an action for civil forfeiture with evidence located 

in Mexico. Although the case had been pending for almost three years, the U.S. 

government requested additional time to gather evidence, citing the “significant 

challenges” in obtaining formal discovery from Mexico despite numerous inquiries. Noting the government’s due diligence, the court granted the request, but also 

stated that it would rely on its inherent authority to control the scheduling of pretrial proceedings and deny any future MLAT-based extension requests.67

Although district courts are involved in overseeing incoming MLAT requests, 

they have no direct oversight over requests sent from the United States to a foreign country. A court may sometimes become indirectly involved in an outgoing 

MLAT process, however, such as when delays in processing have an impact on 

the management of a domestic case or present speedy trial issues. If an MLAT 

request issued by the Department of Justice threatens to result in unacceptable delays in or burdens on a court proceeding, the court may suggest that the government either (1) forgo obtaining certain evidence, or (2) limit its request to essential evidence, thereby ensuring that requests are processed expeditiously.

4. Statute of Limitations

When the government seeks evidence from abroad prior to the return of an indictment, it files an ex parte application with the court to toll the statute of limitations 

pursuant to 18 U.S.C. § 3292. The court must find by a preponderance of the evidence that “it reasonably appears” the evidence is located in the foreign country,

68

and the tolling of the statute may not exceed three years.69 The suspension of the 

statute of limitations begins on the date that the MLAT request is made; it ends 

when the foreign government takes its final action on the request.

70 Section 3292 

 

65. See generally Kendall & Funk, supra note 3, at 215 (suggesting that, because of these 

challenges, it is often preferable to request that the foreign authorities “simply ship the entire 

seized hard drive to the United States”).

66. No. CV-08-1499-PHX-LOA, 2010 WL 2745065 (D. Ariz. July 12, 2010).

67. Id.

68. See United States v. Trainor, 376 F.3d 1325, 1336 (11th Cir. 2004) (“[T]he Government 

must present some evidence—something of evidentiary value—that it reasonably appears the 

requested evidence is in a foreign country.”).

69. See, e.g., United States v. Lyttle, 667 F.3d 220, 224 (2d Cir. 2012) (holding that section 

3292 “requires a district court to suspend the running of a statute of limitations upon an 

appropriate application showing: (1) that evidence of an offense being investigated by a grand jury 

is in a foreign country; and (2) that such evidence has been officially requested. According to the 

statute, the preponderance-of-the-evidence standard applies when determining whether the United 

States has made an official request. When deciding whether the evidence is in a foreign country, 

however, a lower standard applies: a court must find by a preponderance of the evidence . . . that it 

reasonably appears, or reasonably appeared at the time the request was made, that such evidence 

is, or was, in a foreign country.”).

70. 18 U.S.C. § 3292(b).
16 Mutual Legal Assistance Treaties and Letters Rogatory Guide

does not provide the defendant with a right to notice that the statute of limitations 

is being suspended or a hearing on the issue.

71

In United States v. Lyttle, the court rejected the defendant’s claim that tolling 

the statute of limitations was improper, because the documents in question could 

have been obtained through the U.S. branch of a Hungarian bank via domestic 

subpoena duces tecum, rather than the more time-consuming MLAT process.

72

Looking at the “plain text” of section 3292, the court found no requirement that 

the foreign evidence be obtainable only through diplomatic channels in order for 

the statute of limitations to be tolled.73

Although section 3292 incorporates a low evidentiary threshold, the court 

must nevertheless scrutinize government requests to have the statute of limitations 

tolled. In United States v. Wilson,

74 the defendant was indicted in 1998 for an international money laundering conspiracy involving the Bahamas. The defendant 

filed a motion to dismiss, arguing that the prosecution was time-barred. Contesting this motion, the government pointed to a 1994 court order suspending the limitations period beginning in 1993, when OIA made an official request for Wilson’s financial records from a Nassau bank, pursuant to the U.S.–Bahamas MLAT.

Wilson challenged the government’s assertion, arguing that the proffered copy of 

the letter of request and the government’s “representation” that the letter was sent

were inadequate.

75 The Fifth Circuit ruled that the evidence raised a factual issue 

concerning whether the government actually sent the discovery request to the 

Bahamas, and it remanded the case for an evidentiary hearing.76

On remand, the government failed to produce any documentary evidence that 

the letter of request was sent; nor did it offer testimony of individuals who issued 

or received the letter.77 The district court, nevertheless, again denied Wilson’s 

motion to dismiss. The court of appeals, in turn, for a second time reversed the 

district court’s decision, pointing to the absence of “consistent procedures or practices at OIA during the time in question,” and concluding that the district court 

improperly tolled the statute of limitations.78

 

71. See DeGeorge v. U.S. Dist. Court for Cent. Dist. Cal., 219 F.3d 930, 937 (9th Cir. 2000).

See also United States v. Hoffecker, 530 F.3d 137, 168 (3d Cir. 2008) (“We find that there was 

nothing improper about the ex parte nature of the proceeding before the grand jury judge.”); 

United States v. Wilson, 249 F.3d 366, 371 (5th Cir. 2001) (“An application to toll the statute of 

limitations under § 3292 is a preindictment, ex parte proceeding.”), abrogated by Whitfield v. 

United States, 543 U.S. 209 (2005).

72. 667 F.3d at 224–25.

73. Id. at 225.

74. 249 F.3d 366 (5th Cir. 2001). See also United States v. Torres, 318 F.3d 1058, 1061 (11th 

Cir. 2003) (“Under § 3292, the government may apply, ex parte, for suspension of the statute of

limitations when it seeks evidence located in a foreign country.”).

75. Wilson, 249 F.3d at 372.

76 Id. at 373.

77. The government introduced the testimony of a paralegal who did not work on the Wilson 

case but “claimed familiarity with the office policies and procedures in place in 1993 when OIA 

allegedly sent the MLAT request.” United States v. Wilson, 322 F.3d 353 (5th Cir. 2003).

78. Id. at 362.
Mutual Legal Assistance Treaties and Letters Rogatory Guide 17

III. Letters Rogatory

Letters rogatory are formal requests for judicial assistance made by a court in one 

country to a court in another country.

79 Once issued, they may be conveyed

through diplomatic channels, or they may be sent directly from court to court.

80

Letters rogatory are often used to obtain evidence, such as compelled testimony,

that may not be accessible to a foreign criminal or civil litigant without judicial 

authorization. They are used primarily by non-government litigants who do not 

have access to the MLAT process. “While it has been held that federal courts 

have inherent power to issue and respond to letters rogatory, such jurisdiction has 

largely been regulated by congressional legislation.”81

A. Outgoing 

The letter rogatory process is less formal than pursuing evidence through an 

MLAT, but its execution can be more time-consuming. Outgoing letters rogatory—requests for assistance with obtaining evidence abroad, made by counsel 

through the U.S. court—are issued by the U.S. State Department pursuant to 28 

U.S.C. § 1781, and provided for under Federal Rules of Civil Procedure 28(b) and 

4(f)(2)(B). Section 1781(b), however, also allows for a district court (and, for that 

matter, a foreign court) to bypass the State Department and transmit the outgoing 

letter rogatory directly to the “foreign tribunal, officer, or agency.”82

In most cases, foreign courts honor requests issued pursuant to letters rogatory.

However, international judicial assistance is discretionary, based upon principles 

of comity rather than treaty, and is also subject to legal procedures in the requested country. Compliance with a letter rogatory request is left to the discretion 

of the court or tribunal in the “requested” jurisdiction (that is, the court or tribunal 

to which the letter rogatory is addressed). For example, if a request for compelled 

 

79. The rules for enforcement of letters rogatory were promulgated as part of the Hague Convention Relating to Civil Procedure, which was ratified by more than sixty countries, including the 

United States. See Hague Convention Relating to Civil Procedure, http://www.jus.uio.no/english/ 

services/library/treaties/11/11-02/civil-procedure.xml (last visited April 9, 2014). See also Eileen 

P. McCarthy, A Proposed Uniform Standard for U.S. Courts in Granting Requests for 

International Judicial Assistance, 15 Fordham Int’l L.J. 772, 778 (1991) (“Letters rogatory can be 

more effective than commissions because the executing courts have recourse to their own 

procedures to compel recalcitrant or reluctant witnesses to comply with their judicial decrees.”).

80. 28 U.S.C. § 1781. Letters rogatory and accompanying documents may be submitted to the 

Office of American Services, U.S. Department of State, SA-29 4th Floor, 2201 C Street N.W., 

Washington, DC 20520-0001. Phone: 1-888-407-4747. See generally U.S. Department of State, 

Preparation of Letters Rogatory, http://travel.state.gov/content/travel/english/legal-considerations/ 

judicial/obtaining-evidence/preparation-letters-rogatory.html (last visited April 10, 2014).

81. In re Letters Rogatory from the Justice Court, District of Montreal, Canada, 523 F.2d 562 

(6th Cir. 1975).

82. Title 28 U.S.C. § 1781(a) provides that the U.S. State Department is “empowered” to 

(1) use formal channels to transmit letters rogatory from foreign or international tribunals to the 

appropriate U.S. court and receive and return them after execution, and (2) transmit letters 

rogatory from U.S. courts to the applicable foreign or international tribunal, officer, or agency and 

receive and return them after execution. 
18 Mutual Legal Assistance Treaties and Letters Rogatory Guide

testimony is granted by a foreign court, the taking of that testimony may not necessarily follow procedures similar to those of the United States, such as through 

depositions.

Because the letter rogatory process is time-consuming and may involve 

unique issues of foreign procedural law, parties seeking evidence can arrange for

local counsel in the foreign country to file the letter rogatory on their behalf, a 

strategy that may facilitate the process. The U.S. trial proceedings may be impacted by delays flowing from the foregoing procedural and practical hurdles.

83

B. Incoming 

Incoming letters rogatory—requests for judicial assistance originating in a foreign 

or international tribunal—are also covered by 28 U.S.C. §§ 1781 and 1782. OIA 

receives incoming letters rogatory from foreign or international tribunals and 

transmits each request to the federal court in the district where the evidence is 

located or witness resides.84 After reviewing the request, the district court may 

order the taking of testimony or production of evidence for use in the foreign proceeding.

85 The evidence is then provided to the requesting foreign party by OIA.

The U.S. court may “prescribe the practice and procedure, which may be in 

whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document 

or other thing.”86 Or, if nothing in the request prescribes otherwise, the court may 

follow the Federal Rules of Civil Procedure. Legal privileges are respected, and 

privileged testimony cannot be compelled. The process typically takes place ex 

parte, though a court has the authority to require notification of other parties in the 

foreign litigation prior to the issuance of an order.

87

U.S. courts have considerable discretion when reviewing incoming letters 

rogatory from foreign courts.

88 The U.S. Supreme Court’s decision in Intel Corp. 

v. Advanced Micro Devices, Inc.89 involved a request to a U.S. district court for 

the production of documents to be used in a proceeding before a European administrative tribunal. The Supreme Court clarified the parameters of U.S. court assis-

 

83. The following statutory provisions also govern the issuance and processing of letters 

rogatory: the All Writs Act, 28 U.S.C. § 1651; 28 U.S.C. §§ 1781 and 1782 (describing the transmittal of letters rogatory through the Department of State and through the district courts); 28 

U.S.C. § 1696 (providing for the use of letters rogatory for service of process pursuant to a request 

by a foreign tribunal); and 22 C.F.R. 92.66 (detailing the consular procedures for transmittal of 

letters rogatory).

84. 28 U.S.C. § 1782.

85. Id.

86. Id.

87. See, e.g., In re Merck & Co., 197 F.R.D. 267, 271 (M.D.N.C. 2000).

88. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004) (“As earlier 

emphasized, a district court is not required to grant a § 1782(a) discovery application simply 

because it has the authority to do so.”); Four Pillars Enters. Co. v. Avery Dennison Corp., 308 

F.3d 1075, 1078 (9th Cir. 2002) (“Congress gave the federal district courts broad discretion to 

determine whether, and to what extent, to honor a request for assistance under 28 U.S.C. 

§ 1782.”).

89. 542 U.S. at 241.
Mutual Legal Assistance Treaties and Letters Rogatory Guide 19

tance to foreign tribunals pursuant to section 1782 and reiterated that district 

courts have broad discretion in allowing discovery that aids foreign proceedings.

When reviewing an application made under section 1782, a court should examine the nature of the foreign tribunal, the character of the proceedings, and the 

foreign government’s receptivity to U.S. judicial assistance. It should also consider the following:

• Is the person from whom discovery is sought a participant in the foreign 

proceeding? “‘[T]he need for § 1782(a) aid generally is not as apparent as it 

ordinarily is when evidence is sought from a nonparticipant.’”

90

• Does the request conceal “an attempt to circumvent foreign proof-gathering 

restrictions or other policies of a foreign country or the United States?”

91

• Is the request unduly intrusive or burdensome or made for the purpose of 

harassment?

92

The Intel decision also noted that in some cases a court may modify a discovery 

request to make it less burdensome.93

C. Case Management

In contrast to MLATs, letters rogatory are not treaty-based; there is no guarantee 

that the requested country or tribunal will act on a request for assistance, or if it 

acts, how it will act. When evaluating a defendant’s request for letters rogatory to 

secure evidence located abroad, courts consider the following factors:

• Is the proffered evidence exculpatory?

• Is it cumulative of evidence more readily available in the United States?

• Was the request for evidence made in a timely manner?

94

If the evidence in question is necessary to ensure a fair trial, obtaining it will most 

likely warrant the delay inherent in the letter rogatory process.

95

In United States v. Jefferson,

96 for example, Jefferson made a pretrial motion 

to depose witnesses located in Nigeria, arguing that their testimony would be 

exculpatory.97 The witnesses would not consent to be deposed, and Jefferson 

sought an order requiring the government to invoke the MLAT between the 

United States and Nigeria, or, in the alternative, requested that the court issue a 

letter rogatory.98 The court found the proffered witness testimony to be material, 

 

90. In re Clerici, 481 F.3d 1324, 1334 (11th Cir. 2007) (quoting Intel, 542 U.S. at 264–65).

91. Intel, 542 U.S. at 241.

92. See generally id. at 264–65; In re Request for Assistance from Ministry of Legal Affairs 

of Trinidad & Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988).

93. Intel, 542 U.S. at 245 (“[I]ntrusive or burdensome requests may be rejected or trimmed.”).

94. United States v. Dearden, 546 F.2d 622, 625 (5th Cir. 1977); United States v. Rosen, 240 

F.R.D. 204, 213 (E.D. Va. 2007); United States v. Jefferson, 594 F. Supp. 2d 655, 673 (E.D. Va. 

2009).

95. See Progressive Minerals, LLC v. Rashid, No. 5:07-CV-108, 2009 WL 1789083, at *2 

(N.D. W. Va. June 23, 2009); Rosen, 240 F.R.D. at 213. 

96. 594 F. Supp. 2d at 661.

97. Id. 

98. Id.
20 Mutual Legal Assistance Treaties and Letters Rogatory Guide

noncumulative, and potentially exculpatory.99 The government argued that Jefferson’s motion should be denied because he waited nearly a year after indictment 

before seeking the evidence and the trial would be delayed. 

Noting that the MLAT process was not available to the defense, the court 

agreed to issue a letter rogatory. The court found that the material nature of the 

evidence requested excused the delay required to obtain it. The court issued a letter rogatory to the appropriate Nigerian judicial authority, requesting that it ascertain the witnesses’ willingness to waive their Fifth Amendment rights and answer 

questions fully in a later deposition—a compromise ruling tailored to the case.100

The letter rogatory process may take as long as a year, presenting courts with 

case management challenges. Although delays may be mitigated by transmitting a 

copy of the request through INTERPOL or some other more direct route, even in 

urgent cases, such requests often take at least a month to execute. To minimize 

unnecessary delay, the court may choose to review outgoing letters rogatory or 

inquire of counsel whether steps were taken to ensure as expeditious a response as 

possible.

1. Preliminary Information

Courts may consider the following issues when reviewing an outgoing letter

rogatory:

• Did the party requesting the assistance review the country-specific judicial 

assistance information on the Department of State website and U.S. state 

and federal law relating to the subject to determine whether the requested 

assistance can, in fact, be rendered?

• Does the letter include unnecessary information that may confuse a court in 

the receiving foreign country?

• Is the request for assistance sufficiently specific so as not to resemble a

fishing expedition?

• If the party making the request believes it is preferable for foreign courts to 

follow particular procedures, does the letter include specific instructions in 

this regard (for example, a verbatim transcript, witness testimony under 

oath, or permission for U.S. or foreign counsel to attend or participate in 

proceedings)?

• Has the party requesting the letter consulted the country-specific information for guidance about authentication procedures for the particular 

country (that is, are a judicial signature and seal sufficient)? 

 

99. Id. at 667–73.

100. Id. at 675–76.
Mutual Legal Assistance Treaties and Letters Rogatory Guide 21

2. Essential Elements of a Letter Rogatory

In addition, to facilitate the process, courts should ensure that the letter includes

the following:

• a statement that the request for international judicial assistance is being 

made in the interests of justice;

• a brief synopsis of the case, including identification of the parties and the 

nature of the claim and relief sought, to enable the foreign court to understand the issues involved;

• the type of case (e.g., civil, criminal, or administrative);

• the nature of the assistance required (e.g., compel testimony or production 

of evidence, serve process);

• the name, address, and other identifiers, such as corporate title, of the person abroad to be served or from whom evidence is to be compelled, and a 

description of any documents to be served;

• a list of questions to be asked, where applicable (generally in the form of 

written interrogatories);

• a statement from the requesting court expressing a willingness to provide 

similar reciprocal assistance to judicial authorities of the receiving state; 

and

• a statement that the requesting court or counsel is willing to reimburse the 

judicial authorities of the receiving state for any costs incurred in executing 

the requesting court’s letter rogatory.

Figure 2 outlines the typical outgoing letter rogatory process, and the Appendix presents a sample letter rogatory from the U.S. Department of Justice.
22 Mutual Legal Assistance Treaties and Letters Rogatory Guide

Figure 2. Submitting a Letter Rogatory for Execution by a Foreign Court

DOS reviews the letter rogatory and, once approved, transmits it to 

the U.S. embassy in the applicable country

State of federal court (or counsel) transmits the letter rogatory to the 

U.S. Department of State (DOS)

U.S. embassy transmits the letter rogatory to the 

Ministry of Foreign Affairs

Ministry of Foreign Affairs transmits the letter rogatory to the 

Ministry of Justice

Ministry of Justice transmits the letter rogatory to the foreign court

Provided the request comports with foreign laws and regulations, 

the foreign court provides requested assistance

Result of the assistance is transmitted to DOS via the 

diplomatic channels

'262I¿FHRI$PHULFDQ&LWL]HQV6HUYLFHVWUDQVPLWVWKHUHVXOWWRWKH

UHTXHVWLQJFRXUWLQWKH8QLWHG6WDWHVYLDFHUWL¿HGPDLO

5HTXHVWLQJFRXQVHORUSDUW\LVQRWL¿HG
Mutual Legal Assistance Treaties and Letters Rogatory Guide 23

IV. Information Exchange Through Informal Channels 

Although formal MLATs, letters rogatory, and other international conventions are

the “public face” of transnational legal assistance, a significant amount of criminal investigation-related information is exchanged through informal channels: investigator to investigator, prosecutor to prosecutor, defense counsel to local counterpart. Indeed, personal, cooperative law enforcement relationships can be so informal and “off the grid” that law enforcement agencies, courts, and defendants 

may only learn of them by accident.

Responding to the challenges of transnational law enforcement, the FBI and 

other U.S. law enforcement agencies have aggressively sought to develop institutional relationships with their foreign counterparts. Teams of U.S. law enforcement officers regularly coordinate with each other and with their foreign counterparts in a task force approach, often working out of offices in U.S. embassies and 

missions around the world. This “bricks and mortar” outreach enables U.S. law 

enforcement officials to cultivate professional relationships and more readily access other sources of information in the host countries.

The U.S. Departments of State, Treasury, and Justice institutionalize crossborder cooperation through memoranda of understanding (MOU) structured to

improve the handling and sharing of law enforcement information in foreign jurisdictions. Although the benefits of this cooperation are significant, the process has 

limitations. Courts should be aware that information gathered in the informal 

manner described in this section may be incomplete and is not always tendered to 

prosecutors or, through the discovery process, provided to the defense. 

V. Conclusion

Whether through MLATs, letters rogatory, or informal means, the process of obtaining evidence from abroad in criminal and civil cases can be time-consuming

and frustrating to all parties involved, including the courts. Prepared with a basic 

understanding of how these transnational evidence-gathering tools operate, courts 

can plan for potential delays; evaluate the arguments made by the government, the 

defense, and civil litigants; and facilitate the evidence-gathering process in a manner that promotes fairness and conserves resources.

Mutual Legal Assistance Treaties and Letters Rogatory Guide 25

Appendix 

U.S. DEPARTMENT OF JUSTICE 

SAMPLE LETTER ROGATORY

NAME OF COURT IN SENDING STATE REQUESTING JUDICIAL 

ASSISTANCE

NAME OF PLAINTIFF

V. DOCKET NUMBER

NAME OF DEFENDANT

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE 

(LETTER ROGATORY)

(Name of the requesting court) presents its compliments to the appropriate judicial authority of (name of receiving state), and requests international judicial 

assistance to (obtain evidence/effect service of process) to be used in a (civil, 

criminal, administrative) proceeding before this court in the above captioned 

matter. A (trial/hearing) on this matter is scheduled at present for (date) in (city, 

state, country). 

This court requests the assistance described herein as necessary in the interests of 

justice. The assistance requested is that the appropriate judicial authority of (name 

of receiving state) (compel the appearance of the below named individuals to give 

evidence/produce documents) (effect service of process upon the below named 

individuals). 

(Names of witnesses/persons to be served)

(Nationality of witnesses/persons to be served)

(Addresses of witnesses/persons to be served)

(Description of documents or other evidence to be produced)

Facts

(The facts of the case pending before the requesting court should be stated briefly 

here, including a list of those laws of the sending state which govern the matter 

pending before the court in the receiving state.) 
26 Mutual Legal Assistance Treaties and Letters Rogatory Guide

(Questions)

(If the request is for evidence, the questions for the witnesses should be listed 

here.)

(List any special rights of witnesses pursuant to the laws of the requesting state 

here.)

(List any special methods or procedures to be followed.)

(Include a request for notification of time and place for examination of witnesses/documents before the court in the receiving state here.)

Reciprocity

(The requesting court should include a statement expressing a willingness to provide similar assistance to judicial authorities of the receiving state.) 

Reimbursement for costs

(The requesting court should include a statement expressing a willingness to reimburse the judicial authorities of the receiving state for costs incurred in executing 

the requesting court’s letters rogatory.) 

Signature of requesting judge

Typed name of requesting judge

Name of requesting court

City, State, Country

Date

(Seal of court)
Mutual Legal Assistance Treaties and Letters Rogatory Guide 27

Recommended Resources

Internet sites

INTERPOL: www.interpol.int/.

U.S. Attorney’s Manual Section on Letters Rogatory: www.justice.gov/usao/ 

eousa/foia_reading_room/usam/title9/crm00275.htm.

U.S. Department of Justice, Criminal Division contact information: www.justice.

gov/criminal/about/contact.html. 

U.S. Department of Justice, Office of International Affairs homepage: www.

justice.gov/criminal/about/oia.html. 

U.S. Department of Justice, Office of Justice Programs, National Institute of 

Justice, International Center homepage: www.nij.gov/international/.

U.S. Department of Justice, Office of Overseas Prosecutorial Development, 

Assistance & Training Program homepage: www.justice.gov/criminal/opdat/.

U.S. Department of State, Country-Specific Judicial Assistance Information:

http://travel.state.gov/content/travel/english/legal-considerations/judicial/ 

country.html.

U.S. Department of State, Preparation of Letters Rogatory: http://travel.state. 

gov/content/travel/english/legal-considerations/judicial/obtaining-evidence/ 

preparation-letters-rogatory.html.

U.S. Department of State, Office of the Legal Adviser, A List of Treaties and 

Other International Agreements of the United States in Force: www.state.

gov/www/global/legal_affairs/tifindex.html.

Books

Michael Abbell, Obtaining Evidence Abroad in Criminal Cases (2010).

American Bar Association, Obtaining Discovery Abroad (2d ed. 2006).

Gary B. Born & Peter B. Rutlege, International Civil Litigation in United States 

Courts (5th ed. 2011).

Virginia M. Kendall & T. Markus Funk, Child Exploitation and Trafficking: 

Examining Global Challenges and U.S. Responses, ch. 11 (2012).

David McClean, International Co-operation in Civil and Criminal Matters (2d ed.

2002).

Mutual Legal Assistance Treaties and Letters Rogatory Guide 29

Table of Authorities

Cases

DeGeorge v. U.S. Dist. Court for Cent. Dist. of Cal., 219 F.3d 930 (9th Cir. 

2000), 16

Euromepa v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995), 14

Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th Cir. 2002), 

18

In re Clerici, 481 F.3d 1324 (11th Cir. 2007), 19

In re Commissioner’s Subpoenas, 325 F.3d 1287 (11th Cir. 2003), 1, 5, 11

In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 

F.2d 686 (D.C. Cir. 1989), 2, 3

In re Letters Rogatory from the Justice Court, District of Montreal, Canada, 523 

F.2d 562 (6th Cir. 1975), 17

In re Merck & Co., 197 F.R.D. 267 (M.D.N.C. 2000), 18

In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557 (9th 

Cir. 2011), 9, 10, 11

In re Request for Assistance from Ministry of Legal Affairs of Trinidad &

Tobago, 848 F.2d 1151 (11th Cir. 1988), 7, 19

In re Request from United Kingdom Pursuant to Treaty Between Gov’t of U.S. & 

Gov’t of United Kingdom on Mut. Assistance in Criminal Matters in the 

Matter of Dolours Price, 718 F.3d 13 (1st Cir. 2013), 10

In re Request from United Kingdom Pursuant to Treaty, No. 11-2511, 685 F.3d 1

(1st Cir. 2012), 10, 11, 14

In re Terrorist Bombings of South Africa, 552 F.3d 177 (2d Cir. 2008), 7

In re Veiga, 746 F. Supp. 2d 8 (D.D.C. 2010), 14

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), 8, 18, 19

Morgenthau v. Avion Res. Ltd., 49 A.D.3d 50, 849 N.Y.S.2d 223 (2007), 2

Progressive Minerals, LLC v. Rashid, No. 5:07-CV-108, 2009 WL 1789083, at *2 

(N.D. W. Va. June 23, 2009), 19

United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001), 10, 12

United States v. Behety, 32 F.3d 503 (11th Cir. 1994), 7

United States v. Callaway, 446 F.2d 753 (3d Cir. 1971), 7

United States v. Chitron Electronics Co., 668 F. Supp. 2d 298 (D. Mass. 2009), 12

United States v. Dearden, 546 F.2d 622 (5th Cir. 1977), 19

United States v. Duboc, 694 F.3d 1223 (11th Cir. 2012), 12, 14
30 Mutual Legal Assistance Treaties and Letters Rogatory Guide

United States v. Hayes, 231 F.3d 663 (9th Cir. 2000), 7

United States v. Hoffecker, 530 F.3d 137 (3d Cir. 2008), 16

United States v. Jefferson, 594 F. Supp. 2d 655 (E.D. Va. 2009), 7, 14, 19, 20

United States v. Lyttle, 667 F.3d 220 (2d Cir. 2012), 15, 16

United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006), 13, 14

United States v. $93,110.00 in U.S. Currency, No. CV-08-1499-PHX-LOA, 2010 

WL 2745065 (D. Ariz. July 12, 2010), 15

United States v. Rommy, 506 F.3d 108 (2d Cir. 2007), 5

United States v. Rosen, 240 F.R.D. 204 (E.D. Va. 2007), 19

United States v. Sensi, 879 F.2d 888 (D.C. Cir. 1989), 14

United States v. Sindona, 636 F.2d 792 (2d Cir. 1980), 12

United States v. Theresius Filippi, 918 F.2d 244 (1st Cir. 1990), 13

United States v. Torres, 318 F.3d 1058 (11th Cir. 2003), 16

United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004), 15

United States v. Trustees of Boston College, 831 F. Supp. 2d 435 (D. Mass. 

2011), 10, 11

United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. 2009), 12

United States v. Wilson, 249 F.3d 366 (5th Cir. 2001), 16

United States v. Wilson, 322 F.3d 353 (5th Cir., 2003), 16

Whitfield v. United States, 543 U.S. 209 (2005), 16

Rules and Regulations

22 C.F.R. 92.66, 18

Fed. R. Civ. P. 4(f)(2)(B), 17

Fed. R. Civ. P. 28(b), 17

Statutes 

18 U.S.C. § 3292, 15, 16 

18 U.S.C. § 3512, 9–10 

28 U.S.C. § 1651, 18 

28 U.S.C. § 1696, 18 

28 U.S.C. § 1781, 1, 2, 14, 17, 18 

28 U.S.C. § 1782, 1, 2, 3, 5, 8, 9, 10, 18, 19 
Mutual Legal Assistance Treaties and Letters Rogatory Guide 31

Other Authorities

155 Cong. Rec. S6810 (daily ed. June 18, 2009) (statement of Sen. Whitehouse), 

9

David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights As 

Citizens?, 25 Jefferson L. Rev. 367 (2003), 7

Ian R. Conner, Peoples Divided: The Application of United States Constitutional 

Protections in International Criminal Law Enforcement, 11 Wm. & Mary Bill 

Rts. J. 495 (2002), 13

T. Markus Funk & Bo Dul, Regrouping and Refocusing: 2013 FCPA Year-InReview and Enforcement Trends for 2014, Bloomberg BNA Sec. Reg. & L. 

Rep., 46 SRLR 121 (Jan. 20, 2014), 12

Lita M. Grace, The United States and Canadian Border: An Attempt to Increase 

Bi-Lateral Cooperation for the Prevention of Transnational Crime, Colum. J. 

Int’l Aff. (2012), available at http://jia.sipa.columbia.edu/united-states-andcanadian-border (last visited Jan. 13, 2014), 1

Hague Convention Relating to Civil Procedure, http://www.jus.uio.no/english/ 

services/library/treaties/11/11-02/civil-procedure.xml (last visited April 9, 

2014), 17

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial 

Matters (the Hague Evidence Convention) codified at 28 U.S.C. § 1781, 1, 2, 

8

Daniel Huff, Witness for the Defense: The Compulsory Process Clause As a Limit 

on Extraterritorial Criminal Jurisdiction, 15 Tex. Rev. L. & Pol. 129 (2010), 

13

International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty 

Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 (referring to art. 14, 

sec. 3), 13

Virginia M. Kendall & T. Markus Funk, Child Exploitation and Trafficking: 

Examining the Global Challenges and U.S. Responses (2012), 1, 15

Hon. Virginia M. Kendall & T. Markus Funk, The Role of Mutual Legal 

Assistance Treaties in Obtaining Foreign Evidence, 40 A.B.A. Litig. J. 1 

(2014), 6, 10

David Luban et al., International and Transnational Criminal Law (2009), 6

Robert Neale Lyman, Compulsory Process in a Globalized Era: Defendant 

Access to Mutual Legal Assistance Treaties, 47 Va. J. Int’l L. 261 (2006), 13

Kimberly Prost, Breaking Down the Barriers: International Cooperation in Combating Transnational Crime, http://www.oas.org/juridico/mla/en/can/en_can_

prost.en.html (last visited Jan. 13, 2014), 5

Robert Timothy Reagan, Federal Judicial Center, Sealing Court Records and Proceedings: A Pocket Guide (2010), 10
32 Mutual Legal Assistance Treaties and Letters Rogatory Guide

L. Song Richardson, Convicting the Innocent, 26 Berkeley J. Int’l L. 62 (2008), 

12, 13

S. Exec. Doc. No. 109-14 (2006), 6

S. Exec. Doc. No. 110-14 (2008), 6

S. Treaty Doc. No. 111-6 (2010), 6

Frank Tuerkheimer, Globalization of U.S. Law Enforcement: Does the Constitution Come Along?, 39 Hous. L. Rev. 307 (2002), 13

U.S. Department of State, 7 Foreign Affairs Manual (FAM), www.state.gov/ 

m/a/dir/regs/fam/, 2, 5 

U.S. Government Accountability Office, GAO-11-730, Tax Administration: 

IRS’s Information Exchanges with Other Countries Could Be Improved 

Through Better Performance Information (2011), 6

Dan Webb et al., Corporate Internal Investigations (2010), 1
Mutual Legal Assistance Treaties and Letters Rogatory Guide 33

About the Author

T. Markus Funk is a partner at Perkins Coie. Prior to entering private practice, he

for ten years served as a federal prosecutor in Chicago, and for two years led the 

efforts of the U.S. Department of Justice (DOJ) and U.S. State Department to 

establish the rule of law in post-conflict Kosovo. Both the State Department and 

DOJ awarded Mr. Funk their highest service distinctions.

Mr. Funk was formerly a law clerk to Chief U.S. District Judge Catherine D. 

Perry (St. Louis) and the Hon. Morris S. Arnold (U.S. Court of Appeals for the 

Eighth Circuit). He taught criminal and international law at, among other places,

the University of Oxford, University of Chicago Law School, Northwestern University School of Law, and the U.S. Department of Justice’s National Advocacy 

Center.

Mr. Funk has authored numerous books, book chapters, and articles on international law and litigation, including The Kosovo Trial Skills Manual (U.S. Department of Justice 2007), Victims’ Rights and Advocacy at the International 

Criminal Court (Oxford University Press 2010), The Haiti Trial Skills Manual

(American Bar Association 2011), and Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses (co-authored with the Hon. 

Virginia M. Kendall; Rowman & Littlefield 2012). He can be reached at 

MFunk@ perkinscoie.com.
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge John D. Bates, Director of the Administrative Office of the U.S. Courts 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of New York 

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial system. It was 

established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the 

director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial 

Conference. 

The organization of the Center reflects its primary statutory mandates. The Education Division 

plans and produces education and training for judges and court staff, including in-person programs, 

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resources. The Research Division examines and evaluates current and alternative federal court practices 

and policies. This research assists Judicial Conference committees, who request most Center research, 

in developing policy recommendations. The Center’s research also contributes substantially to its educational mission. The Federal Judicial History Office helps courts and others study and preserve federal 

judicial history. The International Judicial Relations Office provides information to judicial and legal 

officials from foreign countries and assesses how to inform federal judicial personnel of developments 

in international law and other court systems that may affect their work. Two units of the Director’s Office—the Information Technology Office and Communications Policy & Design Office—support Center missions through technology, editorial and design assistance, and organization and dissemination of 

Center resources.