Proceedings Of The Marine

WIN 2015

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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Page 34 of 70

32 Proceedings Winter 2015–2016 not necessarily a given in every case, nor is it a party's only option when responding. Under Fed. R. Civ. P. 45(d), a sub- poenaed party has the ability to either object to or attempt to quash a Coast Guard subpoena. In the case of a subpoena to produce documents or other evidence, under Rule 45(d)(2)(B), a subpoenaed party can respond to the IO by objecting to the subpoena. The objec- tion must be in writing and must be served to the investigat- ing offcer within 14 days of the subpoena's date of service. In this situation, the IO's next step would be to pursue judi- cial enforcement. A subpoenaed party can also go to court to attempt to quash, or void, a subpoena. Rule 45(d)(3) states that a court will quash or modify a subpoena if it does not permit a reasonable time for the party to comply, requires the party to comply outside of specifed geographic limits (see the Marine Casualty Subpoena Authority discussion), requires disclosure of privileged or protected material, or imposes undue burden on the party. IOs should carefully consider these factors before serving a subpoena. Additionally, the attorney advisor at the INV-NCOE or the staff attorneys at the servicing district legal offce are available to review draft subpoenas and advise IOs on this issue. Judicial Enforcement Process In those rare situations where a party objects to or ignores a subpoena, the investigating offcer should be prepared to seek judicial enforcement. The frst step involves contacting the investigating unit's servicing legal offce, normally at the district level, for assistance. Although IOs may have devel- oped a working relationship with assistant U.S. attorneys in their area, investigating offcers must always work through their servicing legal offce before requesting Department of Justice support. The Coast Guard legal offce will coordinate referral of the matter to the appropriate U.S. attorney's offce, which may not necessarily be in the same federal district as where the investigator or investigation is located. 3 Similar to the geographical limitation issue discussed, the concept of venue determines the appropriate judicial dis- trict in which a case may be brought. Under 28 USC §1391, venue will normally be determined by where a subpoenaed party resides or where subpoenaed property is located. For the jurisdictional boundary of the federal district court in which the investigation was being conducted. For example, before 2013, if an IO conducting a marine casu- alty investigation in Norfolk, Virginia, needed to examine a computer located in Los Angeles, California, he previously needed to ask an investigating offcer in that Los Angeles area to issue the subpoena on his behalf. But the revision to the Federal Rules of Civil Procedure (Fed. R. Civ. P.) 45 in 2013 eliminated that geographical limit on service, allowing the IO in Norfolk or any other unit to legally serve a sub- poena anywhere in the United States. In situations where personal service is not possible, investigating offcers should accomplish effective service using certified mail with a return receipt or some other traceable form of delivery. Though the limitation on service was eliminated, which was good news, unfortunately the bad news is that IOs must understand that a limitation on the place for compliance remains. Rule 45(c) generally limits compliance to a location within 100 miles of where the person resides, is employed, or regularly transacts business. Returning to the example above, while the investigating offcer in Norfolk can now serve the subpoena requesting the computer in Los Angeles, he or she likely will not be able to require it to be delivered to Norfolk. Instead, the investigating offcer will likely still need assistance from an IO in Los Angeles to get the com- puter to Norfolk. The geographical limitation on compliance is a complex rule that will require evaluating factors specifc to each case. Investigating officers should contact their serving legal offce or the Investigations National Center of Expertise (INV-NCOE) attorney for assistance whenever there is a question about setting forth the appropriate place for com- pliance with a subpoena. Additionally, the IO must ensure that the evidence or appearance sought is relevant to the investigation. When dealing with records, it's a best practice to describe the sought-after records in the greatest detail possible in the subpoena. Overly broad descriptions, such as "all records or information related to F/V X," may result in either an unen- forceable subpoena or a collection of irrelevant records that the IO will then have to review and process in accordance with Coast Guard evidence- and documentation-handling requirements. Quashing or Objecting to a Subpoena A Coast Guard investigating offcer's subpoena authority is well established, and compliance with a subpoena will not likely be an issue in the majority of cases. However, investigating offcers should understand that compliance is When dealing with records, it's a best practice to describe the sought- after records in the greatest detail possible in the subpoena.

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