The full case caption appears at the
end of this opinion. OPINION DIANA GRIBBON MOTZ, Circuit Judge: Seeking information related to the death of his son in a Paris carwreck that became the focus of international media attention,Mohamed Al Fayed filed an ex parte application with the districtcourt for the issuance of a subpoena duces tecum to the NationalSecurity Agency (NSA). Al Fayed applied for the subpoena under 28U.S.C. � 1782(a), which authorizes district courts, at the request of an”interested person,” to order document production for use in proceed ings in a foreign or international tribunal. Al Fayed claimed an interest in proceedings before a French magistrate judge investigating thecrash that led to his son’s death. The district court declined to issuethe subpoena, citing national security concerns raised by NSA in itsresponse to a Freedom of Information Act (FOIA) request. Becausethe district court did not abuse its discretion under � 1782, we affirm. I. In February 1999, Al Fayed asked the district court to issue a subpoena duces tecum for all NSA documents relating to two victims ofa 1997 Paris car crash: Dodi Fayed and Diana, Princess of Wales. Inaddition, he sought all NSA documents relating to himself and to theprincipals in an alleged plot to sell him information supposedly originating in Central Intelligence Agency files. Al Fayed applied for the subpoena under 28 U.S.C.� 1782(a)(1994 & Supp. III 1997) which provides: “The district court of thedistrict in which a person resides or is found may order him . . . toproduce a document or other thing for use in a proceeding in a foreignor international tribunal, including criminal investigations conductedbefore formal accusation. The order may be made . . . upon the application of any interested person . . . .” Al Fayed claimed to be an “interested person” in the now-closed investigation of Premier Juged’instruction Herve Stephan into whether members of the press couldbe held criminally responsible for the crash. Al Fayed contended that he had learned that NSA might possessinformation related to the crash after reading reports in the Daily Mailand the New York Daily News of surveillance by United States intelligence of Princess Diana, and after participants in the above-mentioned plot attempted to sell him supposed United States intelligence documents. In support of his application, Al Fayed offered a1998 letter from NSA responding to a news agency’s FOIA requestfor records related to Princess Diana. In that letter NSA acknowledged the existence of 182 documents in NSA files covered by therequest, denied access to 39 classified NSA documents, and forwarded the request for the remaining documents to the originatingagencies. Under FOIA, an agency need not make documents available to thepublic that are “(A) specifically authorized under criteria establishedby an Executive order to be kept secret in the interest of nationaldefense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. � 552(b)(1) (1994). The NSAresponse to the news agency’s FOIA request specifically cited thisprovision–the first exemption from FOIA’s otherwise broad commitment to government openness–in denying access to the classifieddocuments. NSA’s letter explained that the documents”are classifiedbecause their disclosure could reasonably be expected to cause exceptionally grave damage to the national security.” The district court assumed that the investigation by the Frenchmagistrate, then still ongoing, constituted “proceedings” to which� 1782 applied, and that Al Fayed was an “interested person” in thoseproceedings. The court viewed Al Fayed’s application under � 1782,however, as an attempt “to make an end run around FOIA.” Notingits broad discretion under � 1782, the court declined to issue a subpoena under that statute for documents that had already been identified by NSA as containing sensitive information pertinent to thenational security. Al Fayed appeals, arguing in part that the district court erredbecause it assumed that his application sought the same material asthe news agency’s FOIA request, when in fact it did not. The UnitedStates intervened, and in doing so informed us of a fact that Al Fayedhad failed to mention: prior to applying to the district court for a subpoena, Al Fayed’s attorneys had submitted their own FOIA requestto NSA, asking for precisely the same material as Al Fayed now seeksunder � 1782. NSA denied that FOIA request in July 1999, again citing FOIA’s first exemption, 5 U.S.C. � 552(b)(1), and the possibilityof “exceptionally grave damage to the national security.” Al Fayed conceded at oral argument that in September 1999 JugeStephan closed his investigation into the role members of the pressmay have played in causing the car crash. According to pressaccounts, the investigation lasted eighteen months and involved over200 interviews and 6,000 pages of evidence, after which the magistrate concluded that the driver’s drunkenness was the “direct, immediate and certain cause of the accident.” Apparently, Al Fayed has exercised his right under French law toappeal the termination of the investigation, but this appeal is all thatnow remains of the “proceeding in a foreign . . . tribunal” thatassertedly would be assisted by the issuance of a subpoena under� 1782. Although it is not clear whether a private party’s appeal froma magistrate’s decision to close a criminal investigation is the sort of”proceeding” to which Congress sought to extend the assistance of thefederal courts, we do not decide the case on this ground. The questionhas not been briefed by the parties, and its resolution would requirea somewhat detailed inquiry into a foreign body of law. We need not undertake this inquiry, because the district court didnot abuse its discretion under � 1782 in declining, on the recordbefore it, to issue a subpoena to NSA. II. Section 1782 affords the district courts “wide discretion” inresponding to requests for assistance in proceedings before foreigntribunals. See In re Esses, 101 F.3d 873, 876 (2d Cir. 1996); Lo KaChun v. Lo To, 858 F.2d 1564, 1565 (11th Cir. 1988). The 1964amendments to � 1782, which expanded the range of “proceeding[s]“to which the district court might offer its assistance, were intended toenhance that discretion. See S. Rep. No. 88-1580 (1964), reprinted in1964 U.S.C.C.A.N. 3782, 3788 (“[I]t is intended that the court havediscretion to grant assistance when proceedings are pending beforeinvestigating magistrates in foreign countries.”); see also In re LettersRogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1218(9th Cir. 1976) (“The statute . . . has had a history which reflects adesire on the part of Congress to increase the power of district courtsto respond to letters rogatory” from foreign officials.). In exercising its discretion under � 1782, the district court shouldbe guided by the statute’s “twin aims of providing efficient means ofassistance to participants in international litigation in our federalcourts and encouraging foreign countries by example to provide similar means of assistance to our courts.” In re Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir. 1992). Al Fayed’s ex parteapplication did not make clear how the issuance of the subpoenawould serve Congress’s “twin aims” in enacting and amending� 1782. Al Fayed did not demonstrate how the information he soughtwould assist his “participation” in the proceedings before the Frenchmagistrate. Nor does it seem plausible that the issuance of a subpoenafor highly classified government documents would set an examplethat would encourage foreign governments to grant”similar means ofassistance” to litigants in our courts. The arguments and evidence Al Fayed did present in his application understandably elicited skepticism from the district court.Al Fayed, a private party, asked the district court to issue a subpoenaex parte to an agency whose work involves some of the most sensitiveand necessarily secretive operations of the United States government.Rather than asserting rights under FOIA, the typical route for privateparties to gain access to government documents, he invoked a statutory provision typically utilized by foreign judicial officials, occasionally utilized by prosecutors, plaintiffs and defendants in foreignjudicial proceedings, and almost never utilized by persons inAl Fayed’s position. He offered scant materials in support of hisapplication, and he only summarily explained the purpose and function the requested documents would serve in the foreign proceeding.Disclosure of the documents sought in Al Fayed’s application hadalready been identified by NSA as potentially causing “exceptionallygrave damage to the national security.” Under these circumstances,the district court was well within its broad discretion to deny theapplication. The statute explicitly commits to the district court’s discretion the determination of whether to grant a request for assistancein a foreign tribunal. The district court appropriately exercised thatdiscretion here. See Esses, 101 F.3d at 876 (“Substantively, so longas the district court fashions its order in accordance with the ‘twinaims’ of � 1782, . . . it acts within its discretion.”). Al Fayed argues that the district court erroneously assumed that thenews agency’s FOIA request asked for substantially the same materialas Al Fayed’s subpoena application. To the extent that that argumenthad any merit, it is now foreclosed by Al Fayed’s own December1998 FOIA request, which asked for precisely the same material forwhich he now invokes � 1782. NSA viewed Al Fayed’s FOIArequest, like that of the news agency, as raising serious national security concerns. To the extent NSA had documents covered by therequest, it refused to disclose them under FOIA’s first exemption, 28U.S.C. � 552(b)(1). Al Fayed can seek judicial review of that determination, of course, see 5 U.S.C. � 552(a)(4)(B) (Supp. IV 1998), butin the absence of a finding that NSA improperly refused to disclosethe documents, the agency’s determination should be credited.Congress’s salutary purposes in enacting � 1782 simply do notanticipate the issuance of a subpoena for documents whose disclosurewould be likely to harm the national security. Those purposes certainly do not require the release of documents properly classified assecret and therefore exempt from disclosure under FOIA’s firstexemption–at least not on the basis of an ex parte application withas little supporting justification as this one. Because we decide the matter on narrower grounds, we need notreach the Government’s argument that, based on principles of sovereign immunity and statutory construction, the United States is not a”person” from whom testimony can be required under � 1782.
[FOOTNOTE 1] III. The judgment of the district court denying the ex parte applicationisAFFIRMED. The district court in that case initially issued a subpoena, and the Government moved for a protective order. The court recently held that “person” under � 1782 did “not include a federal agency, such as the CIA”and so quashed the subpoena. See In re Al Fayed , Misc. No. 99-43(D.D.C. April 10, 2000). :::FOOTNOTES:::
FN1 Al Fayed has also filed an application under � 1782 in Washington,D.C. for the issuance of a subpoena to the Central Intelligence Agency.
In re: Mohamed Al Fayed UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT In Re: MOHAMED AL FAYED, Appellant, v. UNITED STATES OF AMERICA, Intervenor. No. 99-1268 Appeal from the United States District Courtfor the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (MISC-99-35) Argued: December 3, 1999 Decided: April 26, 2000 Before LUTTIG and MOTZ, Circuit Judges, andJames H. MICHAEL, Jr., Senior United States District Judgefor the Western District of Virginia, sitting by designation. Affirmed by published opinion. Judge Motz wrote the opinion, inwhich Judge Luttig and Senior Judge Michael joined. COUNSEL ARGUED: Paul Christian Rauser, WILLIAMS & CONNOLLY,Washington, D.C., for Appellant. Henry Thomas Byron, III, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OFJUSTICE, Washington, D.C., for Intervenor. ON BRIEF: TerrenceO’Donnell, WILLIAMS & CONNOLLY, Washington, D.C., forAppellant. David W. Ogden, Acting Assistant Attorney General,Lynne A. Battaglia, United States Attorney, Mark B. Stern, AppellateStaff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.
