Note: A shorter version of this post was published by Bloomberg News on May 14. You can find the article here.
I’ve written before about the Department of Justice’s questionable tactics in an FCPA case against two former executives for Cognizant Technology Solutions. The two executives eventually lost their bid to suppress certain statements made during an internal investigation interview by the company. But they continue to battle DOJ. Their efforts led the trial judge to take the extraordinary step of effectively forcing DOJ to help the defense secure exculpatory overseas evidence through a mutual legal assistance treaty or MLAT.
The case is an example of how a trial judge can exercise discretion to help ensure a fair trial simply by refusing to take what DOJ lawyers say at face value. It’s also a master class in persistent lawyering; by refusing to abandon the battles to obtain this key evidence, the defense may win the war.
The Background of the Cognizant Case
In 2019, DOJ charged Cognizant’s chief legal officer, Stephen Schwartz, and its president, Gordon Coburn, with allegedly approving a $2 million payment to an Indian official in return for a government planning permit that would speed up construction of Cognizant’s office campus in southeastern India. It had previously declined to prosecute the company after it agreed to cooperate and disgorge $28 million to resolve the DOJ and Securities and Exchange Commission investigations.
According to the government, Cognizant did not pay the bribe to the Indian official directly. As in most FCPA cases, an intermediary did. Cognizant contracted with a large Indian construction company, Larsen & Toubro Ltd. (“L&T”). The contract required L&T to obtain a planning permit. According to the government Mr. Coburn and Mr. Schwartz allegedly authorized two Cognizant employees in India to pay a bribe for the permit; the two employees then authorized L&T employees to pay the bribe; L&T hired a consultant, and the consultant paid the bribe.
It’s a tangled web, to be sure. To convict Mr. Schwartz and Mr. Coburn, the government must prove each link in the attenuated causal chain. If Mr. Schwartz and Mr. Coburn can break any of those links—such as by showing that the Cognizant employees in India did not authorize L&T to pay a bribe the bribe or that L&T did not authorize the consultant to pay the bribe or that Mr. Schwartz and Mr. Coburn did not authorize the bribe—then they have a fighting chance to win at trial.
Another key fact is that L&T has denied that it was involved in illegal bribes. After Cognizant acknowledged paying bribes in its DOJ and SEC settlements, L&T sent a letter to the National Stock Exchange of India, saying that “we are not aware of any evidence that supports our involvement in making the alleged improper payments.” And even though it was investigated by both the United States and Indian governments, L&T has never been charged with a crime.
All of this means that witnesses located in India may prove to be the most crucial ones because they may break the government’s causal chain.
The case was initially assigned to Judge Kevin McNulty in the District of New Jersey. In October 2023, however, Judge McNulty took senior status and the case was reassigned to Judge Michael Farbiarz. The change of judge is significant. Judge Farbiarz took a very different view of DOJ’s obligations to facilitate the defendants’ efforts to obtain potentially exculpatory evidence in India.
Overseas Evidence Generally
Defendants in criminal cases have a few limited ways to obtain documents and testimony and they have territorial restrictions. A defendant can seek the court’s permission to issue a Rule 17(c) subpoena for documents. Rule 17(c) subpoenas are governed by ridiculously narrow rules and can only be served in the United States. (I’ve written a few times about the unfairly limited use of these types of subpoenas, such as here and here.) Rule 15 theoretically allows for depositions of witnesses but is rarely used. The trial court has discretion over permitting a deposition in a criminal case and the defense must show that the deposition is necessary because of “exceptional circumstances and in the interest of justice.” Even if allowed, an order for a Rule 15 deposition is only enforceable in the United States.
Defendants’ entitlement to discovery from the government includes evidence that the government has obtained from overseas sources. This entitlement has two important limitations. First, DOJ has no obligation to obtain exculpatory evidence so it is not required to issue a grand jury subpoena for documents it thinks may undercut the prosecution’s case. Second, the government must only produce discovery under Rule 16 or Brady v. Maryland if that evidence is in the government’s “possession, custody, or control.” If DOJ never obtained the evidence in the first place, it cannot turn it over to the defense.
There are a few ways to obtain overseas evidence. One is through a letter rogatory. As the Justice Manual explains,
Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive agreement. A letter rogatory is a request from a judge in the United States to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country’s sovereignty. Prosecutors should assume that the process will take a year or more. Justice Manual § 275.
A defendant can use a letter rogatory to obtain both documents and testimony from people located overseas. But it is a cumbersome method that does not guarantee compliance. Even if the court grants the defendant’s motion to issue a letter rogatory, the defendant has no means to force—or even encourage—the other country to comply with it. Letters rogatory can sit unanswered for years.
Another method to obtain overseas evidence is through an MLAT. As DOJ explains:
Treaties on Mutual Legal Assistance in Criminal Matters (MLATs) enable law enforcement authorities and prosecutors to obtain evidence, information, and testimony abroad in a form admissible in the courts of the Requesting State. As a general matter, MLATs require the Requested State to provide the Requesting State with certain kinds of assistance or evidence such as documents, records, and testimony, provided the requirements of the treaty are satisfied.
Only the United States government can use the MLAT process—it is not directly available for private parties. DOJ’s Office of International Affairs (OIA) has a set of frequently asked questions that address the issue:
Will the Office of International Affairs make requests for assistance for defendants in criminal cases?
No. By their terms, MLATs are reserved for use by the authorities of the parties, which include prosecutors and criminal investigators. MLATs are not available for use by private parties, including criminal defendants.
I am a defense counsel. How do I secure evidence located abroad for use in a criminal case?
MLATs are reserved for use by the criminal law enforcement authorities of the parties, which include prosecutors and criminal investigators. MLATs are not available for use by private parties, including criminal defendants. If you are defense counsel seeking assistance in a criminal matter, you may request assistance from abroad through a letter rogatory transmitted through the State Department.
As explained below, whether the United States is able to issue an MLAT for the benefit of a criminal defendant became a critical issue in the Cognizant case.
Overseas Evidence in the Cognizant Case
In the Cognizant case, evidence from L&T—documents as well as testimony from L&T employees in India—is plainly critical to the defense. Given that L&T denied knowing about any bribes and given that DOJ’s theory required it to prove that L&T paid bribes at Mr. Coburn and Mr. Schwartz’s direction, one would expect that DOJ would have locked down witnesses and documents from L&T to prove this causative chain.
Not so fast. DOJ did not appear to have this evidence, and the defendants are convinced that this evidence will exculpate them. So, the race was on for the defendants to obtain documents and testimony from L&T in India.
The defendants, with DOJ assistance, tried to obtain this evidence through every available method.
First, in late 2020, the New Jersey court authorized the defense to serve Rule 17(c) subpoenas on L&T in the United States. But L&T would not accept service of the subpoenas, so that was a dead end for the defense.
Second, the court then granted the defendants’ request to issue a letter rogatory to India for L&T-related documents. But those requests stalled for years and the defense did not receive any documents.
Third, in August 2022, the defense filed a motion for issuance of a letter rogatory for depositions of seven overseas witnesses under Rule 15. The government opposed the motion.
The court granted the motion and issued this second letter rogatory. This request also stalled for over a year.
It is not surprising that the letters rogatory process failed. Foreign countries are not obligated to respond to them and have little incentive to do so. A private defendant has no coercive power over a foreign government to assist him with obtaining evidence.
A request from the United States government in the form of an MLAT request is altogether different. While DOJ cannot coerce a foreign country to cooperate with an MLAT, DOJ can effectively leverage its cooperation with foreign governments. The very purpose of the Office of International Affairs within DOJ is to help facilitate these international efforts. MLATs are a big part of how DOJ obtains evidence overseas to bring cases and how foreign countries obtain evidence for their own cases.
Obtaining an MLAT in the Cognizant Case
In the Cognizant case, DOJ declined to issue an MLAT for L&T documents or Rule 15 depositions to help the defense, even after it was clear that the letter rogatory process was not going to work.
In a hearing before Judge McNulty in January 2023, defense counsel noted that “[t]he government, in its discretion, decided not to proceed with the MLAT process, as other prosecutors have in other cases where the Rule 15 standard was met with overseas witnesses.” The government lawyer claimed that OIA had provided legal advice that DOJ “could not” issue an MLAT, though the guidance was suspiciously vague:
Well, Your Honor, I would note in the first instance that we did consult with our Office of International Affairs to see whether it would be possible to send an MLAT for these depositions, and we were advised by that office that we could not. We explained that there are other cases where it happened. They told us that we couldn’t do it in this case, and so we’re sort of in a position where we have to follow their guidance.
Judge McNulty acknowledged that these depositions were critical for the defense but effectively deferred to the OIA guidance provided by government counsel. However, he did tell DOJ that he wanted “to know periodically what’s going on with the letters rogatory” and requested that DOJ “use your good offices to find out the status.”
When Judge Farbiarz took over the case in October 2023, however, he pressed DOJ for more information. At a status conference in November 2023, defense counsel explained the need for these witness’ testimony to explain key exhibits and that certain expenses on L&T invoices were for “overstay expenses” and not bribes:
These folks that we have identified have firsthand knowledge of the facts, or would, are authors of the documents that the Government seeks to admit as exhibits and argue from, and the statements that they have made are exculpatory. They say there was no bribe payment, that the – there were overstay expenses for the length of time because of the delay with respect to the project that L&T needed to be compensated for and that the statutory approvals payment built in these overstay expenses, not a corrupt payment.
The judge ordered DOJ to follow up with OIA and the State Department about pushing the letter rogatory process to a resolution.
DOJ sent letters to the court November 13 and November 27 with the requested update about its efforts to expedite the letters rogatory. In sum, DOJ had not been able to speed up India’s response to the letters rogatory.
On December 15, however, DOJ sent another letter update to the court, noting that India had declined to execute the defendants’ letters rogatory and asked that DOJ send the request through the MLAT process. But, said DOJ, the “express terms of the Treaty generally preclude it from being used as a means to obtain evidence on behalf of a criminal defendant.” It went on to say that DOJ planned to advise the Indian Ministry of Home Affairs (responsible for India’s response to the letters rogatory) that “the Defendants’ letters rogatory request was properly made, and that the Treaty precludes OIA from submitting the request as the MHA has requested.”
Judge Farbiarz held a hearing a few days later. He noted that “India is apparently asking for an MLAT to be filed” and said that he did not believe that “MLAT practice” would “involve the recipient entity [India] peeking behind the requestor’s motives.” The DOJ lawyer said she had received a memo with OIA’s guidance on this point, and Judge Farbiarz asked when the memo was dated. The DOJ lawyer (conveniently) did not know the date. For all we know, the “guidance” only came into existence when DOJ made the request in this case.
In response, defense counsel cited a few cases where DOJ had agreed to issue an MLAT, even though it was the defense who was requesting the information, suggesting that OIA was wrong when it said such an MLAT was impossible.
His interest piqued, Judge Farbiarz asked the government how it could explain the apparent inconsistency in its position in this case versus the other cases. The DOJ lawyer did not respond directly to that question but instead said that the trial team had “expressed our view to the Office of International Affairs that we would like to send an MLAT given the Indian government’s position.”
Judge Farbiarz did not quite order DOJ to issue an MLAT but his skepticism of its position was clear. He said:
THE COURT: Ms. Patel, there’s a reason I call you the United States. You represent the sovereign here. You brought this case in the name of the sovereign. And I have no reason to doubt, I fully assume that you all are proceeding with the utmost integrity, as I assume the Justice Department is. But arguments from, “We would like to see this happen, but there’s someone else who doesn’t want it to happen,” when you’re representing the United States, that’s a hard argument for — it’s a hard argument to be persuaded by.
So I think it behooves everybody to take seriously what Mr. Loonam has suggested, take seriously the unusual posture, which it sounds like you have already brought to the Office of International Affairs, and to reflect on whether or not the language of this treaty and these treaties in general really contemplates peeking behind requests and asking about the motive of the sovereign requesting a document or an interview from another sovereign.
That doesn’t strike me as what those treaties are taken to mean, that’s a preliminary view, but I think this is something that will be useful to have, Ms. Patel, you and your team interact with relevant people at the Department of Justice on and come back to us all with.
For a federal judge to “encourage” DOJ to “reflect” on its position that it is impossible to issue an MLAT in this situation is a highly unusual situation. In simpler terms, Judge Farbiarz wasn’t buying what DOJ was selling. He was not going to let this issue die in the bureaucratic back and forth described in DOJ’s letters. He told DOJ to report back in a week, presumably after “reflecting” on its position.
The judge’s pressure worked. On January 2, DOJ wrote the court to say that it had “further conferred with OIA and having received OIA’s assent, the Government has prepared an MLAT request seeking the depositions in the format that the Defendants requested through letters rogatory.” Then, on January 16, government counsel sent a letter to inform the court that it had issued an MLAT to India “seeking the same deposition testimony that the Defendants sought through letters rogatory.”
It took two years and five months after the defendants’ initial request for a letter rogatory to depose several Indian witnesses, but DOJ finally did the right thing and issued the MLAT.
The Current Status
Just a few days ago, the court held a hearing on certain motions and Judge Farbiarz asked the government for an update on the MLAT. DOJ had no update to share and agreed to provide more information when they had it. Judge Fabriarz also asked the DOJ lawyer whether it would object to the admissibility of the transcripts of testimony from India at trial. The DOJ lawyer tried to avoid answering.
Judge Farbiarz then posed the following (paraphrased) question to DOJ: let’s say we’re able to execute on these MLAT’s and obtain deposition testimony and transcripts of these witnesses. Will you, DOJ, object to the admissibility of the evidence at trial, as hearsay? Sonali Patel (DOJ) explained that without knowing what is in the transcript, she cannot say one way or another whether DOJ would object to admitting that testimony. After the judge pressed her, though, she conceded that there is a process to admit deposition testimony but DOJ may have objections to certain parts of the transcripts. (This would be a very typical process since there may be multiple objections to parts of testimony on hearsay and other grounds.)
What Does It All Mean?
MLATs are a powerful tool to obtain overseas evidence. They are, however, almost exclusively in the hands of the Department of Justice. This single case isn’t likely to change DOJ or OIA’s view that it will not issue MLATs for the defense. But it can be used as an example to show DOJ lawyers, and possibly the court, that it is possible to do so. There is apparently not any legal restriction to DOJ taking this step; it’s clearly in its discretion, even if that discretion will only be exercised in the most extreme of circumstances.
Here, it seems that the DOJ lawyers desperately wanted to avoid a federal judge’s order to issue an MLAT. That would set a precedent for other judges to do so and open up a powerful new type of discovery for defendants who can show that overseas evidence is exculpatory and unavailable without the government’s joint effort to obtain it.
There are many lessons learned here, so I’ll summarize just a few of them below.
- If you need overseas evidence, start trying to obtain it early. Letters rogatory rarely work but they certainly will not work in a rushed pre-trial atmosphere. Defense counsel must identify overseas evidence early and start the letter rogatory process immediately. If the letter rogatory process fails, you may have a shot at the MLAT process.
- The stronger the showing the requested evidence is material and exculpatory, the greater the chance you will have to obtain it through this process. Both trial judges agreed that the L&T evidence was likely exculpatory because there were 302s with some witness’ statements to law enforcement. The strength of this showing undoubtedly kept this issue alive. If it had looked like a fishing expedition, the defense efforts would likely have failed.
- Be persistent. The filings in this case reveal how many different times the defense made its point that this evidence was (a) exculpatory and (b) not obtainable in any other way. It tried Rule 17(c) subpoenas and letters rogatory; it hired local Indian counsel to assist; it filed clear, hyperbole-free briefs that set out the facts; and the argument during hearings was focused on those two key points.
- Don’t give up on former-prosecutors-turned-judges. Judge Farbiarz spent a decade as a prosecutor in the Southern District of New York, an office known for aggressive prosecutors. His background does not suggest a defense-friendly approach. But there are times when a former prosecutor on the bench can be extremely helpful to the defense, particularly when a judge is thinking, “I never would have done that when I was a prosecutor.”
The Department of Justice should want to know exactly what these overseas witnesses would say under oath. As the Supreme Court said in Berger v. United States, 295 U.S. 78 (1935), the “United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
The fact that DOJ fought against these efforts until it had no choice suggests that it is worried about what these witnesses will say and how effective cross examination may undercut the prosecution’s case. It should instead have agreed to use “every legitimate means” here, including acquiescing to work with the defense to ensure a fair trial by obtaining these key witnesses’ testimony.
Bravo to the defense counsel in this case: Jones Day, Paul Weiss, Krieger Kim & Lewin, Gibbons PC, and Bohrer PLLC. Keep up the good fight.