Some post-judgment creditors, divorcing spouses and other private litigants use a domestic summons / subpoena to elicit an adversary’s bank customer information from a foreign bank witness. Under limited circumstances, these private litigants might serve a domestic summons / subpoena, as set forth by the Court in First American Corp. v. Price Waterhouse, 154 F.3d 16 (2d Cir. 1998).
Assuming that a subpoenaed foreign bank witness refused to comply with a domestic summons / subpoena because of bank secrecy laws, then the issues raised by Old Ladder Litigation Co. LLC. v. Investcorp Bank B.S.C, et. al., No. 08-CV-00876 (S.D.N.Y. May 29, 2008), can be relevant. U.S. authorities also sometimes elicit bank account information by serving a domestic summons on a foreign bank witness.
The IRS for example, served a domestic summons on UBS AG, headquartered in Zurich, as discussed in "UBS & Its ‘John Doe’ Summons" & "A Domestic Subpoena / Summons In An Offshore Asset Search". U.S authorities might also serve a subpoena on a foreign bank witness by relying on In Re Grand Jury Proceedings (Bank of Nova Scotia), 740 F.2d 817 (11th Cir.), cert. denied, 469 U.S. 1106 (1985). Other methods used to elicit evidence from a foreign bank witness, (besides domestic summonses / subpoenas), often rely on cross-border cooperation.
Formal methods using cross-border cooperation can involve: letters rogatory (a.k.a. legal assistance requests); executive orders; mutual legal assistance or other treaties like tax information exchange agreements. The formal methods of obtaining evidence from foreign witnesses are generally discussed in Section 274 of the United States Attorneys’ Manual. At 18.104.22.168 (07-28-2003), Obtaining International Cooperation, the IRS Manual additionally mentions some of them, in connection with international asset forfeiture.
(Last Edited October 13, 2010)
Copyright 2009-2010 Fred L. Abrams