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2 YEARS

Megaupload Judge Says He Doesn't Know If There Will Ever Be a Trial

The comment reportedly comes in relation to the failure to serve legal papers to the file-sharing website.

Kim Dotcom Released on Bail - H 2012
Sandra Mu/Getty Images

Is the U.S. government's huge criminal trial against Megaupload in trouble?

Federal judge Liam O'Grady is being quoted as saying, "I frankly don't know that we are ever going to have a trial in this matter."

The comment was reportedly made at a hearing over Megaupload's data where O'Grady expressed concern to the FBI over the issue of whether Megaupload has been served court papers. It was picked up by a local newspaper in New Zealand, where Megaupload founder Kim Dotcom awaits word of whether he'll be extradited.

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This could be much ado about nothing, but Dotcom's lawyers are seizing upon the service issue, arguing that it provides new grounds to reject his extradition. Previously, a judge in New Zealand wasn't happy with errors made in the case after local law enforcement filed the wrong type of restraining order in seizing assets. Last week, that gaffe was formally corrected, but the issue of serving papers to Dotcom is being presented as a potentially embarassing error.

Ira Rothken, one of Dotcom's lawyers, is quoted saying that it's not possible to serve defendants in criminal actions overseas with papers.

"My understanding as to why they [the FBI] haven't done that is because they can't," he says. "We don't believe Megaupload can be served in a criminal matter because it is not located within the jurisdiction of the United States."

Dotcom's extradition was never 100 percent assured, and the judge is making a lot of his decisions, including whether to approve a limited appearance by Dotcom's new superstar lawyer, with some weighing of what might happen if the extradition never happens. The U.S. judge likely understands that the New Zealand judge goes first.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner