Statute of Limitations on Obtaining Evidence in Foreign Jurisdictions

As the U.S. government becomes increasingly aggressive in its enforcement of criminal laws that reach beyond American soil, the price of doing business overseas for U.S. companies has escalated. Foreign Corrupt Practices Act (FCPA) investigations alone increased dramatically in 2009 over 2007 and 2008 combined, with recent criminal penalties dwarfing those of years past. In the first few months of 2009, Siemens AG agreed to pay a record-breaking $800 million to the U.S. Department of Justice (DOJ) and Securities Exchange Commission (SEC) to settle an FCPA investigation involving approximately 4,200 allegedly corrupt payments in various countries.¹ Shortly thereafter, Kellogg, Brown & Root LLC and its former parent company, Halliburton Co., settled the DOJ’s and SEC’s investigation into potential payments made to Nigerian officials for a combined $579 million.²

At prosecutors’ disposal in investigating conduct occurring in foreign jurisdictions is a powerful tool that allows the government not only to seek evidence from foreign nations, but to obtain a tolling of the limitations period while doing so. Under 18 USC §3292, prosecutors may apply ex parte for the suspension of the statute of limitations for up to three years while awaiting evidence that reasonably appears to be located in a foreign country while an official request of the relevant foreign government for such evidence is pending.³