personal jurisdiction—which the Court concluded was the case—the corporation was
bound by its subpoena. Id. Thus, in Marc Rich, a subpoena could reach documents
located abroad when the subpoenaed foreign defendant was being compelled to turn
over its own records regarding potential illegal conduct, the effects of which were felt in
the United States.
Contrary to the government’s assertion, neither Marc Rich nor the statute gives
any firm basis for importing law developed in the subpoena context into the SCA’s
warrant provisions. Microsoft convincingly observes that our Court has never upheld
the use of a subpoena to compel a recipient to produce an item under its control and
located overseas when the recipient is merely a caretaker for another individual or
entity and that individual, not the subpoena recipient, has a protectable privacy interest
in the item.25 Appellant’s Br. at 42–43. The government does not identify, and our
review of this Court’s precedent does not reveal, any such cases.
The government also cites, and the District Court relied on, a series of cases in
which banks have been required to comply with subpoenas or discovery orders
requiring disclosure of their overseas records, notwithstanding the possibility that
The government contends that Microsoft has waived the argument that the government
cannot compel production of records that Microsoft holds on its customers’ behalf. Gov’t Br. at
36 & n.14. But in the District Court proceedings, Microsoft argued that there was a “difference
between, on the one hand asking a company for its own documents . . . versus when you are
going after someone else’s documents . . . that are entrusted to us on behalf of our clients.”
Transcript of Oral Argument at 17, In re Warrant, 1:13‐mj‐02814, ECF No. 93. Although this was
not the centerpiece of Microsoft’s argument before the District Court, it was sufficiently raised.
And in any event, we are free to consider arguments made on appeal in the interests of justice
even when they were not raised before the district court. See Gibeau v. Nellis, 18 F.3d 107, 109 (2d
Cir. 1994). The government has had an ample opportunity to rebut Microsoft’s position, and we
see no reason to treat this important argument as beyond our consideration.
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