Timmy the Biglaw Associate realizes that he needs to discover documents from a company in Italy. Timmy knows from CivPro class that discovery requires a subpoena, so he dutifully sits down and writes one, to command the company to produce any and all documents related to XYZ, et c. He seals it up in a FedEx envelope, sends it off to Milan, and a week later, the company’s avvocato tells them to fugghetaboutit— it has no coercive effect in Italy.
Timmy went to an Ivy League law school, graduated at the top of his class, and was heavily recruited by the biggest white shoe firms on the east coast. But they never told Timmy about extraterritorial effect in law school. It simply never came up. What Timmy didn’t know is that a Hague Evidence Request is the proper instrument to compel the production of evidence in Italy and a few dozen other countries. Some very important rules apply to its use, and its execution relies on the kindness of a foreign judge who is a bit like that guy in the sleigh who gets his own tracking system at NORAD.
Some salty old veteran in the managing attorney’s office tells him, “no, Timmy, the Hague Evidence Convention applies here– try again,” so he copies and pastes the subpoena language into the form provided by the Hague Conference, and shoots it off to Rome. It eventually lands on the desk of an Italian judge.
Sadly, a Hague Evidence Request is not what Timmy thinks it is.
It’s not a subpoena. It’s a Letter to Santa Claus.
More to the point, it’s a Letter to Santa Claus in which you must not only justify the pony, but also describe its height, color, and breed, then tell Santa exactly what its responsibilities will be (carnival rides, herding cattle, pulling a beer wagon). You can’t just tell Santa you want “a” pony. You have to define what you mean, and then articulate why.
Think of the Italian judge like Santa Claus. Timmy just demanded a whole bunch of ponies. And you don’t just demand something from the man in the sleigh. Even if you’re Veruca Salt and your daddy is a pushover. You can’t just say you want the whole world, Veruca.
A little illustration…
The year I turned ten, I figured out the guy in the sleigh. Around Thanksgiving, I told Mom & Dad that “I KNOW YOU’VE BEEN LYING TO ME”, and they reacted by threatening my life if I broke my kid sister’s six year-old heart and told her the ugly truth. I almost spilled the beans a couple of times, prompting threatening glares from Mom and a simple tap of the belt buckle from the Old Man. I had to think fast, or Christmas was really going to suck.
Dad had just gotten promoted (ah, life in an Army family), so we could finally afford some of the cooler stuff in the Sears Wishbook, and I was assured that the naughty/nice criteria remained in effect as to my own haul on Christmas morning. I volunteered to help… I’d pitch in and make it special for Kid Sister. On Christmas Eve, I stayed up until 3am with the Old Man to assemble the Barbie Dream House. This evil monstrosity right here–>
It was an epic nightmare. A thousand little pieces and tabs and slots and a schematic to rival the Space Shuttle… just a nightmare. But as much as she appreciated it and played with it for hours and hours, Sis confided in me years later that it wasn’t the one she wanted. She wanted a far simpler version– the town house from the 1960s, rather than the massive Malibu Beach House that all the little girls wanted in 1980, give or take a couple of years. We picked up a ’60s version at a garage sale five months later when the family next door was transferred to Germany.
Two decades later, I was the Old Man myself, and I expected another 3am assembly project. The updated version of Barbie’s town house popped out of the box, folded open, snapped into place, et voila. No assembly, no screws, no tabs… it was as if someone had clued the Mattel people into the fact that dads despised them.
But to compare, my sister hadn’t been specific.* My stepdaughter was pinpoint accurate about her intent– for months– and she took me by the hand every time we were within a mile of Toys ‘R’ Us and said…
<– “THAT ONE, RIGHT THERE.”
Surgically specific. I expected her to make me write down the numbers from the UPC label. On Christmas morning, Santa Claus made that little girl sing with delight (and my heart sang right along with her).
The lesson for litigators here… don’t be like Timmy, or my kid sister. Don’t just say you want “a pony” and think that by noon on Christmas Day, you’ll be driving a herd up to Abilene. Don’t just say “I want a G.I. Joe.” Santa Claus doesn’t know that you want the G.I. Joe with the kung fu grip. He goes to the toy department at K-Mart* and is so overwhelmed with ALL the G.I. Joe stuff that he just gets you a nice, um… football.
In a Hague Evidence request, you have more like my stepdaughter. Or Ralphie Parker– after he left Higbee’s (you know Ralphie, and if you don’t, you’ve obviously been living under a rock for thirty years). Ralphie’s Old Man knew with certainty that he wanted “an official Red Ryder, carbine action, two-hundred shot range model air rifle!”
Why? Because Ralphie was so utterly specific, once he overcame his awe of being in the presence of the big man himself. Of course, he fought really hard to not overdo it. He had to be subtle in communicating his specificity (Miss Shields’ theme assignment probably had no discernible effect on Santa Claus’ understanding of the matter). But he very specifically stated what he sought, and his request was duly executed by the appropriate judicial authority (read: Dad) of the jurisdiction in which the thing was sought (3159 W. 11th Street, Cleveland, OH 44109– in real life).
The point is this: a subpoena demands that someone give you what you seek; if they don’t give it to you, consequences follow. You don’t demand anything in a Hague Evidence Request; if you do, you’re headed for a very pink nightmare.
* The lesson was passed down to the next generation. My nephews now send me URLs to specific products on Amazon. Usually Nerf guns.
** I worked at K-Mart for a couple of seasons while I was in college. It really was a class organization, although I think they treated me better because I was in college and not high school. I worked the toy department for exactly one shift during the Christmas season. Never again. There was just too much… everything. No wonder Santa wants specifics.