Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery

In Invesco High Yield Fund v. Jecklin, No. 21-15809 (9th Cir. Aug. 25, 2021), the Ninth Circuit affirms contempt sanctions against a foreign defendant under 28 U.S.C. § 1826(a), the federal recalcitrant witness statute. The statute provides that when a witness refuses to testify or provide other information, the court “may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information.”

The plaintiffs obtained a judgment against Defendant Jenklin (and two public limited companies) for $38,489,055. “Two months later, Plaintiffs propounded post-judgment interrogatories and requests for the production of documents on the Jecklin Defendants pursuant to Federal Rule[] of Civil Procedure 69(a)(2), which authorizes a judgment creditor to obtain discovery from a judgment debtor to aid in the execution of a judgment.” Jenklin did not produce responses and the court compelled discovery under Fed. R. Civ. P. 37(a).

At a status, defendants declared through counsel that they were “not going to comply with the Court order compelling discovery because they do not accept jurisdiction of this Court and they consider Your Honor’s decision not to be enforceable in Switzerland.” The court held the defendants in contempt and issued an arrest warrant for Jenklin personally: “Upon such arrest, he shall be forthwith brought before this Court to address his contempt. This arrest is intended to be coercive and not punitive.”

On appeal, the Ninth Circuit affirms the contempt sanction, including the arrest warrant.

“Jecklin contends that § 1826(a) does not apply here for two independent reasons. He argues that the statute applies only to a refusal to provide in-person testimony, not to a refusal to answer interrogatories or produce documents. He further asserts that the statute applies to a refusal to produce prejudgment, but not post-judgment, discovery.”

As to the first argument, the panel holds that although the statute refers to a “witness” – not paper discovery – § 1826(a) “as a whole makes clear that a ‘witness’ includes not only someone who refuses to testify but also someone who refuses to ‘provide other information’ . . . Jecklin, therefore, was a witness under the statute.” The panel cites Second and Third Circuit authority in support.

As to the second argument, Jecklin’s argument finds no support in the statutory text. “Section 1826(a) refers to a refusal ‘to testify or provide other information’ in ‘any proceeding before or ancillary to any court or grand jury of the United States.’ 28 U.S.C. § 1826(a). It makes no distinction between prejudgment and post-judgment proceedings, nor between prejudgment and post-judgment information.” The panel also cites Fifth and Seventh Circuit authority in support.

“Given the statutory text, case law, and the statute’s purpose, we hold that § 1826(a) applies to a refusal to produce post-judgment discovery.”

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