The case of the day is In re Application of Pott (S.D. Fla. 2013). It’s a § 1782 application related to the application we considered back in May. In the earlier case, the court granted Alfredo Carlos Pott’s application for judicial assistance. No such luck this time.
I’m not going to re-hash the prior post. The main point there was that although Pott’s criminal case had been dismissed in Argentina, there was a hope that the Argentine Supreme Court might take up the case, in which case he would have the opportunity to submit new evidence. In today’s case, the judge simply changed the emphasis: “In fact, he (Pott) has exhausted his appeals by right and now is simply hoping that [ellipsis] the Supreme Court of Argentina decides to take up the case.” On these grounds, the judge held that Pott had not shown that the evidence was for use in a foreign proceeding and denied the application.
I think these two decisions, read together, raise an interesting question. In foreign legal systems, it’s not necessarily the case that a higher court can consider only the record that was before the lower court, as in our system. A little comparative perspective would, therefore, be useful when construing the “foreign proceedings” prong of § 1782.