Obtaining Foreign Evidence: US Court's Authority to Require Deposition of American Citizen Living Abroad, in the United States

The case of S.E.C. v. Sabhlok N.D.Cal., October 30, 2009 might be a good starting point for practitioners to understand the jurisprudential underpinnings of a Court's authority to require an American citizen living abroad, to travel to the United States to provide testimony. The Magistrate in the Sabhlok case, ordered an American living in Hong Kong to testify in the United States in a SEC investigation.

"The Walsh Act, 28 U.S.C. § 1783, was enacted in 1926 in order to compel Americans living abroad to return to the United States to testify at a trial in a criminal case, if the testimony was deemed by the court issuing the subpoena to be of sufficient importance. The Supreme Court upheld the statute shortly thereafter, including the provision for contempt for failure to appear, stating: “Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.” Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 76 L.Ed. 375 (1932)The Court further stated: “It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience.”