States . Fed . R . Civ . P . 45 ( b )( 2 ). “[ I ] ssuing and serving a subpoena directed to a United States national or resident who is in a foreign country ” is governed by 28 U . S . C . § 1783 . Fed . R . Civ . P . 45 ( b )( 3 ). Section 1783 provides that a subpoena can be directed to a U . S . national or resident abroad if it is “ necessary in the interest of justice , and … that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner .”
A PARTY CANNOT SERVE A SUBPOENA ON A FOREIGN NATIONAL ABROAD
Notably , Rule 45 is “ silent ” as to the service of a subpoena on foreign nationals located outside the United States . The Three Arrows ’ liquidators argued that because Rule 45 does not expressly prevent service on foreign nationals outside the United States , a court can authorize service on such parties . The U . S . Bankruptcy Court disagreed , finding “ it strains credulity to believe that this apparent silence in the Rules would result in the unlimited ability of litigants to serve trial subpoenas on any foreign national anywhere in the world .” 3 The U . S . Bankruptcy Court , relatedly , rejected the liquidators ’ reliance on Rule 4 ( f ), which expressly authorizes service of a complaint on persons , including foreign nationals outside the United States , pursuant to international protocols or other means reasonably calculated to provide notice and not prohibited by a foreign country ’ s law . Instead , it found that inclusion of foreign nationals in Rule 4 ( f ) and not Rule 45 demonstrates a clear congressional intent to : ( i ) limit a U . S . federal court ’ s subpoena power on non-citizens abroad , and ( ii ) subject U . S . citizens , regardless of their location , to compliance with a federal subpoena . The distinction between the method for service of a complaint under Rule 4 ( f ), and a subpoena under Rule 45 is significant because service of a complaint is the means to extend U . S . jurisdiction to a party in a litigation whereas service of a subpoena under Rule 45 relates to nonparties that are not already subject to the jurisdiction of a U . S . Court .
Having found that Zhu , a foreign national living abroad , was incapable of being served with a subpoena , the U . S . Bankruptcy Court found that the liquidators ’ request for an alternative means of service of a subpoena on Zhu was an attempt to avoid the territorial / jurisdictional limitations of Rule 45 . At its core , what the liquidators were seeking via its request for alternative service , was an alternative to Rule 45 itself . The fact that a means of service may provide a subpoena recipient with actual notice is not authority in and of itself to issue the subpoena in the first instance . Particularly , given the ubiquity of electronic media , if the liquidators ’ relief had been granted , Rule 45 ’ s explicit territorial limits would be rendered meaningless . While discovery from Zhu is unavailable in the U . S . case , such discovery may , however , be available in another one of the liquidators ’ ancillary proceedings .
SERVICE OF A SUBPOENA ON U . S . NATIONALS ABROAD Serving Davies was a different matter , given the presumption that he is a U . S citizen . As a U . S . citizen abroad , under 28 U . S . C . § 1783 , the relevant inquiry is whether the discovery sought is ( 1 ) necessary in the interest of justice , and whether it is ( 2 ) not possible to obtain the discovery in any other manner .
With respect to the first inquiry , the U . S . Bankruptcy Court ruled that the founders of Three Arrows had unique knowledge of the debtor ’ s liabilities and assets , including those with a connection to the United States . Similarly , the U . S . Bankruptcy Court noted that because the discovery sought was allowable under Bankruptcy Rule 2004 , which allows for broad fact-finding in bankruptcy cases , the discovery was proper .
In assessing the second inquiry — the ability to obtain discovery from other sources — the U . S . Bankruptcy Court stated that the relevant inquiry does not require a finding of “ sheer impossibility .” Instead , a movant must show that the discovery is “ likely ” not obtainable by other means .
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