Judicial Assistance

• Author: International Law Group

Mohamed Al Fayed's son, Dodi Fayed, and Diana, Princess of Wales, died as the result of a 1997 car accident in Paris. In February 1999, Al Fayed sought information from U.S. government agencies regarding the death of his son. For example, he asked the district court to issue a subpoena duces tecum against the National Security Agency (NSA) under 28 U.S.C. Section 1782.

Al Fayed presented a 1998 letter from the NSA in response to a news agency's Freedom of Information Act (FOIA) request. In the letter, the agency admitted that it had 182 documents pertaining to Princess Diana, but denied access to 39 classified NSA documents. Al Fayed's attorneys later sent in a FOIA request for precisely the same documents. Under FOIA, an agency does not have to disclose documents that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy ..." 5 U.S.C. Section 552(b)(1).

Section 1782(a) authorizes district courts, at the request of an "interested person," to order document production for use in proceedings in a foreign or international tribunal. Here, Al Fayed claimed that he intended to use the documents sought in a proceeding before a French magistrate judge investigating the accident.

[Editors' Note: in September 1999, the French Juge d'Instruction, Herve Stephan, closed the investigation into whether the government could hold members of the press criminally responsible for the crash, and found that the driver's drunkenness was the true cause. Al Fayed has appealed the termination of the investigation.]

The district court considered Al Fayed's application an attempt to circumvent FOIA and declined to issue the subpoena. Al Fayed appealed, arguing that the district court had erroneously assumed that he was asking for the same documents as in the news agency's FOIA request. The U.S. Court of Appeals for the Fourth Circuit finds no abuse of discretion under Section 1782 and affirms.

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