Federal Court Rules that Subpoenas are Its Domain, Boston College Still Directed to Comply
Higher Education Highlights – Summer 2013
JD Supra Law News
by James D. Taylor and Nichole C. Alling
University lawyers are well-accustomed to responding to broad reaching and burdensome subpoenas.
Many are mundane, requiring little substantive work, but occasionally the subpoena touches on more important issues and principles.
That is precisely what happened recently in the First Circuit Court of Appeals.
There, the court held that “the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States.” United States of America v. Trustees of Boston College, No. 12-1236 (1st Cir. May 31, 2013).
The decision – which comes after years of dispute between Boston College and the United States government over the government’s August 2011 subpoena seeking oral histories collected by Boston College for the school’s “Belfast Project” – further clarified the role of the federal courts in the enforcement of subpoenas and rejected the government’s position that courts have no discretion under 18 U.S.C. § 3512 and the US-UK MLAT (a 1996 Treaty between the United States and the United Kingdom on mutual legalassistance in criminal matters) to review subpoenas issued pursuant to the US-UK MLAT.
The government’s August 2011 subpoena resulted from a request by the UK to the U.S. government pursuant to the US-UK MLAT for assistance in investigating the 1974 disappearance of a woman in Belfast, and sought to gain access to Boston College’s Belfast Project materials to help it do so.
Of specific interest were a number of interviews and testimonies of former participants in the oft-violent independence movement in Northern Ireland, which were a part of the numerous oral histories that comprised the Belfast Project.
Due to strict confidentiality agreements with the interviewees, Boston College closely monitored use of the project materials and restricted access for research and study purposes.
It was not surprising then that Boston College filed a motion to quash the government’s August 2011 subpoena.
But the college’s request was denied and the District Court of Massachusetts ordered the production of 85 Belfast Project interviews.
Boston College appealed that decision, which led the First Circuit Court of Appeals to consider the federal courts’ constitutional position to review and control the process of executing a subpoena request.
Reviewing both the language of the US-UK MLAT and the constitutional role and reasoning behind the U.S.’s tri-furcated balance of powers, the Court of Appeals rejected the government’s position that only the Attorney General, and not the courts, could review subpoenas issued pursuant to the US-UK MLAT.
According to the court, if its conclusion were other-wise, federal courts would be no more than “rubber stamps for commissioners appointed pursuant to the treaty” and subpoenas issued by the executive branch would be “automatically enforced by the courts” in such a way that the executive branch would “virtually exercise judicial powers.”
That, the court found, would be contrary to the constitution.
After finding it had discretion to review enforcement of the August 2011 subpoena, the court then found that the subpoena materials were to be reviewed under an “ordinary standard of relevance,” declining Boston College’s request that review be under a heightened “direct relevance” standard.
Nevertheless, the court held that the district court abused its discretion by directing the production of certain Belfast Project materials irrelevant to the government’s August 2011 subpoena.
Exercising its “inherent judicial function,” the court reduced the number of oral histories ordered for production from 85 to 11.