Foreign Evidence Compulsion

Pixel.la via Wikimedia Commons

The Supreme Court issued a decision in May that seems, at least on its face, to be absolutely groundbreaking in transnational litigation.  And a few otherwise cogent blogs have posited recently that it will mean great things in the discovery field, now that subpoenas can be served by mail.  Both of those statements are quite incorrect.  The decision will have minimal effect anywhere but perhaps Houston and Kansas City, and it will have zero effect on discovery, electronic or otherwise.  Zero.

For starters, the Water Splash opinion is anything but groundbreaking.  It merely resolved a circuit split that didn’t amount to a whole lot.  The 5th & 8th Circuits, along with a number of federal districts, had previously held mail service under the Hague Service Convention to be invalid.  The 2d and the 9th, where substantially more lawsuits target foreign defendants, took the opposite (correct) view.  My take on the whole thing: big deal.  Mail service is usually a bad idea regardless of its legal validity.

More flawed, though, is the idea that the Hague Service Convention, in light of Water Splash, allows for service of subpoenas by mail.  It doesn’t.  It never did.  It never will.

Because subpoenas aren’t considered judicial or extrajudicial documents covered by the Service Convention.*

Subpoenas are a construct of the common law, and even other common law countries don’t use them nearly as often as we Yanks do.  In civil law countries, they’re unheard of, because evidence is not produced at a lawyer’s demand.  It’s produced because the judge wants the evidence and issues an order saying so.  I say this repeatedly:  you can’t simply serve a subpoena abroad.  You can’t.  Period.  There is no variance on this.

And if you can’t serve it, the Service Convention isn’t what you look to in determining how to make the witness or custodian cough up the information you seek.  The Hague Evidence Convention provides the avenue, and it does a rather poor job of it by U.S. standards.**

To compel production for a U.S. action in a fellow Hague country a Hague Letter of Request is necessary.  And a word of caution: STOP CALLING IT DISCOVERY.  It’s evidence taking–or more accurately, evidence compulsion in most cases.  Call it discovery, and your request will be rejected by the foreign judge without so much as a thank you.

You can get to the evidence.  It just requires significantly more effort than dropping a subpoena in the mail.

Water Splash’s effect on the undertaking:  Nada.  Zip.  Zilch.


* A clarification is in order– and I thank Ted Folkman of Letters Blogatory for pointing it out:  yes, a subpoena is unquestionably a judicial document.  In the United States.  Elsewhere, it’s viewed as a tool of all-too-zealous lawyers who (in the view of our common law brethren) overreach, or who (in the view of our civil law cousins) usurp the authority of foreign courts by barking demands at their citizenry.

** That is not to say it’s a bad treaty.  It just doesn’t do much for U.S. litigators in the way that we might hope.  In reality, it only knocks down a couple of procedural barriers that hamper the old fashioned Letter Rogatory procedure.  At its core, everything is still up to the foreign judge, in a manner governed by foreign law.  This makes U.S. judges quite happy, of course (<– sarcasm).  Article 23 constitutes a big, ugly middle finger to American lawyers who need documents located in a file cabinet somewhere in Europe.

1o5tclYou’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product in Europe through a British distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.

[The author intones, as if in a Gregorian chant…]

For you, glorious and gentle counselor, have preached the gospel of truth.  You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.

[You’re getting a bit of a big head, don’t you think?]

You implore your fellow pilgrims to create an epistle of truth for the ages!

Alrighty, then.  You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the British company at its office in Berkshire.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the mission field you go.  You plunk down $1,000 to have Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the the Royals Courts in London, telling you that “oh, sorry, dear boy.  Quite bad form.  You’ve blundered the whole thing.” [That’s nasty in English legal circles.  And it’s funnier if you read it in Hugh Grant’s voice.  It’s nastier if you read in Ralph Fiennes’ voice… as Voldemort.]

Where did the wheels fall off?

  • Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
  • Joe Bob didn’t know that subpoenas aren’t covered by the Hague Service Convention (they’re covered by the Hague Evidence Convention).
  • Even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Plus that, you can’t simply “serve” a subpoena.  It doesn’t work that way.  You have to send a Hague Evidence Request through the appropriate channels, and ask an English court to compel production.
  • And what’s more, the British have indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  There are certain exceptions to their Article 23 declaration; your request has to be written in just the right way.

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and even the Brits hate that.  So do the French, the Chinese, the Germans, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.


32cf689669c85dec780ce383cb28ecfd0bef8f41Just hope the custodian of documents isn’t this guy–>

No, really, this guy is a twit.  And apparently, he now fancies himself a rock star.  Sheesh.

[I enjoyed the original British version of The Office far more than the successful American version.  Both make you want to cringe, but David Brent was simply funnier than Michael Scott.]

Rishichhibber, via Wikimedia Commons.
Rishichhibber, via Wikimedia Commons.

Lawyers love analogies, and a good one tickled my brain as I listened to a bright young homebuilder speak during a panel discussion on entrepreneurship hosted recently by the Kansas City Business Journal.  She talked about how vital it is to have the right subcontractors in place in order to achieve the best product and cost basis.  The right culture, the right base of knowledge… in order to harness innovation.

I’m always squawking about how lawyers should outsource their international work—and why wouldn’t I?  I’m what’s known in the industry as an LPO… a legal process outsourcer.    My whole practice exists as a way for litigators to keep certain work off their desk, saving their clients and their firms a significant amount of money, time, and frustration.

But the outsourcing analogy strikes me as not quite accurate.  It seems that outsourcing is something you do merely to cut costs.  The better analogy: subcontracting, because it doesn’t only cut costs– it increases quality.

Let’s say you’re a homebuilder, a general contractor, and you’re known throughout your community for great design, solid construction, and a highly personalized system that involves new homeowners at every stage of the process.  You stand by your work, and because you make a concerted effort to know the people handing you hundreds of thousands of dollars, you sell lots of houses.

A family comes to you, wanting a four-bedroom house with all the bells & whistles that state-of-the-art technology can provide.  The contracts are signed and you begin amassing the money and materials necessary to build this family’s dream home.

But that’s not all you need to amass.  You aren’t a landscaper.  You aren’t a plumber, or an electrician, or a hardwood floor guy.

You’re a GC, so how do you get it all done?  You subcontract the specialty work.

Why?  Because it’s efficient, and because the quality of your work product is significantly higher.  Each discrete component of the construction process is handled by somebody with deep, specialized knowledge of his own discipline.

Lawyers provide a service not unlike that of a homebuilder.  Hundreds of thousands of dollars are on the line, professional expertise is vital, and trust is the foundation of every transaction.

Yet lawyers have an incredibly hard time subcontracting the work that they don’t specialize in—like serving process or compelling production of evidence in another country.  And that is to their own detriment.

One of my law school professors always loved to say “hey, it’s tough out there” any time somebody complained about one obscure doctrine or another.  And he was absolutely right.  It’s tough out there for litigators—and there are minefields in procedural law that can be easily avoided when lawyers are willing to consult with someone who has deeper knowledge.

Litigators who are tough themselves know that they can’t do it all, just like that homebuilder knows she can’t do the tile and plumbing and wiring work all by herself.  She assembles a team, and that makes all the difference.

Few things in transnational litigation are as vexing or as unnecessarily frightful as the Letter Rogatory.  Honestly, they’re not that complicated—they just have a few necessary elements that many practitioners miss, and because they’re signed by the judge, we worry.  A lot.  Perhaps this will shed some light…

What is it?

Black’s Law Dictionary (7th Ed.) defines a “letter of request” (same animal) as “a document issued by one court to a foreign court, requesting that the foreign court (1) take evidence from a specific person within the foreign jurisdiction or serve process on an individual or corporation within the foreign jurisdiction and (2) return the testimony or proof of service for use in a pending case.”

Put another way, it’s just a note from one judge to another, asking for a little help:

Dear Unknown Judge in Country XYZ:

 I’m a judge, too, y’see, and I’ve got this case in my court that can’t proceed unless I get some help.  Here’s what’s going on…  (details)

 Now that I’ve spelled out the gist of the case, I’d really appreciate it if you could see your way clear to sending out one of your guys to (serve process/compel this witness to submit to examination/compel production of evidence…).  Pretty please.  You’re a good fellow and, if you ever have occasion to send me one of these requests, you can bet I’ll make it happen for you.  And if you’re ever in Cleveland, I’ll buy you a beer.

Oh yeah, the party that’s asking me to ask you for the favor?  Yeah, he’s gonna cover all of your expenses, so go nuts, Scooter.    Much obliged.

 Your new best pal,

U.S. judge

I’m not exaggerating.  That’s really the tenor of the thing, albeit illustrated like a note from a 12 year-old to his canoeing buddy from summer camp.  It’s just a judge here asking a judge there for a hand.  Nothing more, nothing less.  The biggest drawback: there is not a single legal doctrine that compels the foreign* judge to execute the letter (grant the favor) except the doctrine of comity.  Nothing.

As such, if you get a grumpy judge on the other end (no, we never have those), you could have a problem.  So be gentle.  And just a tad obsequious.

Judge Haller has zero tolerance for your crap.
No, we never have grumpy judges here in ‘Murica.

What’s it used for?

A couple of big issues:  (1) evidence taking, and (2) service of process in countries that aren’t members of the Hague Service Convention.

What are the hurdles?

Well, for starters, the manner in which it’s conveyed.  Letters Rogatory are usually sent through diplomatic channels, which means it takes a while just to arrive in the foreign country, and it also means you have to pony up $2,275 to the State Department for the favor of sending it abroad in the diplomatic pouch.

Some exceptions to the “send it through State” rule:

  • The Hague Service Convention renders Letters Rogatory completely unnecessary, so don’t sweat using one for Service of Process in much of the world.
  • The Hague Evidence Convention removes the State Department from the equation, and allows submission directly to a Central Authority.  It’s called a Hague Letter of Request, but substantively, it’s the same thing.
  • The InterAmerican Convention on Letters Rogatory and Additional Protocol reduce the format to some pre-printed forms and allow for submission directly to a Central Authority, whether for service or evidence compulsion.
  • Many Canadian courts will accept them directly for evidence requests.  That is, they’re still Letters Rogatory, but without the hassle and cost of going through State.  (Note that Canada is not party to the Evidence Convention.)

Another big hurdle is making the forum court judge understand why this this is necessary in the first place.  Keep in mind, this is the fellow whose signature is going on the thing.  I know some very fine judges, and several of them have told me, quite literally, that they don’t know a thing about handling cross-border issues.  And who can blame them?  After all, we expect these folks to know everything about everything, but they’re human.  And it’s frequently up to us lawyers to advise them on the proper protocol.

The biggest hurdle of all is finding the right balance between (1) getting what you want and (2) getting what you need.  That, like everything else we do, requires solid drafting.

For evidentiary requests, the Three Cardinal Rules of Hague Evidence Requests apply.  Again, whether the Convention applies or not, the instrument of request is the same critter.  For Service of Process, the Letter is a tad simpler to write; see the sample in the Federal Judicial Center’s guide for judges on Letters Rogatory.


Shameless plug:  if this thing is too daunting, for crying out loud, call in some help (hint, hint).  It’s always going to be better for your client if you hire a sherpa to help you carry your gear up the mountain instead of trying to go it alone.


* Foreign.  Term of art, meaning outside this jurisdiction.  Ontario is foreign to New York.  Missouri is foreign to New York, for that matter, just as France is foreign to Texas and Kansas is foreign to, well, everywhere.  (Sorry, Jayhawkers.  Y’all are just goofy sometimes with that rock chalk chant thingy.)  Point is, Letters Rogatory can be transmitted between courts within the United States– they aren’t just a transnational concept.

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a distributor in Manitoba, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada  pack o’ Timbits.*  The damning piece of documentary evidence that will vindicate your client’s rights and body-check the defense into the glass.

The announcer in your head:  Plaintiff’s Counsel has the puck…  he shoots, he scores!

[Your heroics rouse up the crowd, and they politely chant your name!]

The announcer, again:  Take off, eh? You’re dreaming again, thinking you’re in the Stanley Cup Finals, but you’re really in a Bob & Doug sketch.

Okay, then.  In the real world, you tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the Canadian company at its office in Winnipeg.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the rink you go.  You plunk down $1,000 to have Joe Bob the Process Server pull the paperwork together, and then you wait.

Three months later, you get a polite note from the Ministry of the Ontario Attorney General.  “Well, gee, eh?  We’re really soory about this, but no.  You can’t do that.  Soory.”

Sorry? That should read "soory".
Sorry? That should read “soory”.  Manners are nice.

So, where did the wheels fall off?

  • For starters, you let a process server—who does not have a law license—tell you how to handle an intricate transnational legal procedure. He doesn’t know what he’s talking aboot, so yes, you should give your professional liability carrier a heads-up.
  • What Joe Bob didn’t know is that subpoenas aren’t covered by the Hague Service Convention. They’re covered by the Hague Evidence Convention.  Sort of.
  • Even if they were under the Service Convention, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • But Canada isn’t a party to the Evidence Convention anyway, so the idea of a Central Authority is out of the question.
  • Regardless, you can’t just serve a subpoena.  It doesn’t work that way.  You have to petition the forum court to issue a Letter Rogatory, and then send it through the appropriate channels to ask a Canadian court in the right province to compel production.
  • Oh, and you didn’t say please.  The Canadians are some of the nicest, most polite people on the planet.  But if you don’t reciprocate (or preemptively offer) that politeness, you’re toast.
  • I kid.  Of course, you said please.  You just didn’t say it to the right person in the right way.  A big pack o’ Timbits* would help.

So, let’s face off again, and try the right approach to getting the puck in the net.

Here are the THREE CARDINAL RULES for Hague Evidence Requests—and they apply equally to Letters Rogatory:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  They are the hallmark of good old ‘Murican discovery, and the rest of the world hates that.  The Germans hate that.  So do the French, the Chinese, the Brits, aaaaaand… the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel. At the front end, they’ll help us/you draft the request and will appear for you in the foreign court.  If you have the right one, you won’t even have to pay the State Department $2,275 to hand the thing off to the Canadians!  It will cost you a few hours of the Canadian lawyer’s time and, probably a pack o’ Timbits.*

Give me a shout if any of this doesn’t make sense.


* If you don’t know Timbits, you ain’t lived, friend.  They’re Canadian crack.

* If you don’t know Timbits, you ain’t lived, friend.
Thanks to Warren Buffett, we might just get them here someday.  The inversion is costing us a whole bunch of tax revenue, but, dude… Timbits.

 

You can’t serve a subpoena in France.

You can’t serve a subpoena in China.

You can’t serve a subpoena in Germany or Japan or India or Mexico or Switzerland or England or Austria…

Get the point?

Ye cain’t do it, Boudreaux.  You can’t serve a subpoena in a foreign country.  For that matter, you can’t just serve a subpoena in another state.  A subpoena is a demand by a lawyer, backed up by the contempt power of the court.  But just as that contempt power stops at the jurisdictional boundary (the state line), the subpoena loses its coercive effect when it crosses that boundary.  It only regains coercive effect on the other side of the line either through a domestication action (in the other state’s courts) or under the authority of a statute (and even the statutory mechanism is not automatic).

At the international level, it’s even more tricky, because there is no statute.  And the procedural analog to domestication is incredibly complex.  There is a treaty involved, but it really only greases the domestication skids.

The Hague Evidence Convention

It isn’t unreasonable to think that a subpoena can be conveyed abroad in the same way we serve summonses and complaints.  After all, the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (very long name for the Hague Service Convention) is a great mechanism for getting the job done.

Subpoena… judicial or extrajudicial document.  Seems pretty straightforward, right?

Wrong.  Subpoenas are not “Judicial (or) Extrajudicial Documents” for the purposes of the Service Convention.  Instead, they fall within the scope of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (long name for the Hague Evidence Convention).

And that is where the wheels fall of the wagon, so to speak.  Instead of serving the thing, you have to seek its (for lack of a better word) domestication.  And that comes through a Hague Evidence Request (in countries not party to the Convention, an old fashioned Letter Rogatory is used).

That request functions just like a Letter Rogatory, in that it is a communication from one judge to another.  The only real difference is that it doesn’t have to be conveyed through diplomatic channels to the court in the foreign country.  But neither of these instruments can look like a subpoena.  They can’t contain subpoena language, they can’t reflect the demanding tone of a subpoena, and they can’t look like they belong on a rack at Bass Pro Shops.*  Careful drafting is critical, or the whole exercise is a massive waste of time and resources.

Dales Fuzzy Photos, via Wikimedia Commons
Dales Fuzzy Photos, via Wikimedia Commons

THREE CARDINAL RULES for Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary. Seriously.  They are the hallmark of good old ‘Murican discovery, and foreign courts hate that.  The French, the Germans, the Chinese, the Brits, the Canadians (yes, the Canadians hate our discovery practices, of all people, but I digress, as they aren’t in the Evidence Convention**).
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel in the foreign jurisdiction.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court that will (or won’t) execute the request.

This is only the beginning of the process, but if you don’t start here, you’re sunk.

Above all, you must be surgically specific in identifying what you seek (see Rule 1).  Instead of “provide copies of all emails between your staff members from July, 1983 to June, 1987 pertaining to the promotion of Strange Brew“, narrow it down to “provide a hard copy of the email exchange between Bob and Doug on the morning of August 7, 1983 with subject heading ‘This movie is terrible.’

Don’t say “the text included therein is expected to identify all of the persons involved in creating a horrible film, and we can’t identify them any other way.”  Say “we anticipate that both Bob and Doug will testify under oath that they created a wonderful comedy romp, and this evidence will directly refute such testimony.”

Yes, it needs to be that concise.


* Bass Pro Shops.  You know.  The fishing rod place?  [Peggy is reminding me that “if you have to explain it, it isn’t funny.”]

** Canada is not party to the Evidence Convention, but the Letter Rogatory process may not have to involve the State Department when evidence is located north of the border.


One would think, given the theme of the art in this post, that a picture of a certain baseball team from a certain city on the eastern edge of my state would be appropriate here.  Not gonna happen.  Instead, I give you the fellows from Missouri’s west side

unknown
We saw it coming, SI.

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a German distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada  streuselkuchen.  The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to the light of truth and human understanding.

[The author intones, as if in a Gregorian chant…]

For you, glorious and gentle counselor, have preached the gospel of truth.  You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.

[You’re getting a bit of a big head, don’t you think?]

You implore your fellow pilgrims to create an epistle of truth for the ages!

Alrighty, then.  You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the German company at its office in Munich.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the mission field you go.  You plunk down $1,000 to have the subpoena translated into German, and send another $1,000 to Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the the Justice Ministry in Berlin, telling you that “NEIN, MEIN HERR/MEINE FRAU.  DAS IST UNMÖGLICH.”  No, sir/madam.  That is impossible.

Where did the wheels fall off?

  • Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
  • What Joe Bob didn’t know is that subpoenas aren’t covered by the Hague Service Convention (they’re covered by the Hague Evidence Convention), and even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Second, even if the Service Convention were right, and even if you signed the thing instead of Bob, the Präsidentin des Oberlandesgerichts München (the State Court President in Munich) is the Central Authority in Bavaria.  Joe Bob erroneously sent the thing to Berlin.
  •  Third, you can’t just “serve” a subpoena.  It doesn’t work that way.  You have to send a Hague Evidence Request through the appropriate channels, and ask a German court in the right state* to compel production.
  • Fourth, the Germans have blocking statutes that may prevent compulsion, and they’ve indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  But there are certain exceptions to the statutes and to the Article 23 declaration; your request has to be written in just the right way.
  • Oh, and you didn’t say “bitte.”  The Germans have a very rigid view of decorum.  Where is your sense of propriety?  (I kid.  Of course, you said bitte.  You just didn’t say it to the right person in the right way.)

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and the Germans hate that.  So do the French, the Chinese, the Brits, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.


* Much like the U.S., Germany is a federal system, where some areas of the law are controlled at the national level, others at the state (“Land“) level.

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow involved in a business arrangement with a French entity, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada croissant.  The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to its knees, trembling before the searing heat of your onslaught.

[The author bellows, in a deep, resonant voice…]

For you, counselor, are a gladiator.  A warrior for justice! Wielding a mighty sword, forged by men like Blackstone, Marshall, Holmes… Wapner.

[You’re getting a bit of a big head, don’t you think?]

You command your minions to create a mighty instrument of warfare!

Okay, you tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the French company.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the wars you go.  You plunk down $1,000 to have the subpoena translated into French, and send another $1,000 to Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the Justice Ministry in Paris, telling you that “NON, MONSIEUR/MADAM.  CA, C’EST IMPOSSIBLE.”  No, sir/madam.  That is impossible.

Where did the wheels fall off?

  • Well, first, you let a process server—without a law license—tell you that you had the right scenario/legal conclusion in mind [yes, you should give your professional liability carrier a heads-up].  What the process server didn’t understand is that subpoenas aren’t covered by the Hague Service Convention (they’re covered by the Hague Evidence Convention), and even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Second, you can’t just “serve” a subpoena.  It doesn’t work that way.  You have to send a Hague Evidence Request through the appropriate channels, and ask a French court to compel production.
  • Third, the French have blocking statutes that may prevent compulsion, and they’ve indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  But there are certain exceptions to the statutes and to the Article 23 declaration; your request has to be written in just the right way.
  • Fourth, you didn’t say s’il vous plaît.  Manners matter to those folks in France.  Where is your sense of propriety?  (I kid.  Of course, you said s’il vous plaît.  You just didn’t say it to the right person in the right way.)

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and the French hate that.  So do the Germans, the Chinese, the Brits, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.

 

 


It certainly wasn’t a slow weekend in global politics.  New Zealand’s exceedingly popular Prime Minister announced his retirement, Austria’s voters barely shunned a return to power by the hard right, and Italians rebuffed an arguably critical spate of constitutional reforms, prompting the resignation of their own popular PM.  So, what to make of these stories here in America?  Like many things, that depends on your perspective.  Much as I opined after the Brexit vote in June, not much will change in terms of how U.S. litigants must interact with foreign parties.

NEW ZEALAND

Frankly, precious little is going to change in Auckland—Prime Minister Key says he’s leaving at the top of his game.  When a PM retires, his party usually remains in power, so the agenda doesn’t change dramatically.  Look for New Zealand to continue arguing about sheep and rugby and whether to remove the Union Jack from their national flag, all while continuing to fortify their defenses against Saruman and his Orc army.

Not exactly the best image of New Zealand culture.
Not exactly the best image of New Zealand culture.

I kid, of course.  New Zealand is high on my bucket list of places to visit, because the place is objectively stunning (so the perfect location to portray Middle Earth).  They have a host of challenges before them, just like the rest of us: wealth inequality, racial tension, affordable housing, the occasional earthquake.  But in terms of relations with the U.S., status quo continuum (or however that should be conjugated).

And I don’t foresee any changes in serving process or compelling evidence down there.  It’s a common law system that, despite its absence from the Hague Service & Evidence Conventions, is not much more complicated than those in other common law countries.

Like the U.S., New Zealand is a member of the Hague Apostille, Child Abduction, and Adoption (1993) Conventions.  Especially the Apostille Convention makes life a little bit easier for litigants (and litigators).

AUSTRIA

Score one for the good guys on Sunday.  ‘Nuff said on that issue.

sound-of-music
Gratuitous picture of everybody’s favorite Austrian.

Truly, no more is going to change due to Austria’s electoral results than to New Zealand’s change in leadership.  That is, not much from a U.S. litigation perspective.  More pertinent to forthcoming changes is Austria’s expected accession to the Hague Service Convention, which has been approved by the Council of Europe (Herr Van der Bellen, we’re waiting patiently).

amadeus 2
Okay, maybe this guy is everybody’s favorite Austrian.

Austria is already a party to the Apostille, Adoption (1993), and Child Support (2007) Conventions, but its absence from the Service Convention means that a litigant’s only option to serve an Austrian defendant is an old-fashioned Letter Rogatory.  Expensive and time-consuming, that device.  And if it’s not worded correctly, highly problematic.  [Watch this space for updates as the HSC enters into force for Austria.  We’ll be on top of it.]

ITALY

Personally, I think the Italians get a bad rap.  The trains run pretty efficiently (a lonely bright spot in the horrible legacy of Benito Mussolini), the wine is both good and cheap, and that Pavarotti fellow is still yyyuuuuge there.  I really do love traveling in Italy—and I’ve returned to Rome several times, having never tossed any lira/euros into that fountain.  This is notwithstanding the fact that I’d do pretty much anything Anita Ekberg asked me to (still, that scene is completely implausible—even at 3am, there are hordes of tourists crowded around).

On Sunday, a massive slate of constitutional changes was rejected by the Italian electorate, whose turnout numbers ought to shame every American.  So status quo continuum (please, somebody conjugate that correctly?).  The very popular (and young) Prime Minister Matteo Renzi pinned his political future to this ballot, and resigned as promised.  The amendments were criticized as, ostensibly, a huge power grab by the PM, but “fake news” arguably had a huge influence on the vote (well played, Mr. Putin… well played).  The bottom line, 63 governments in 70 years was not sufficiently frustrating to warrant the changes advocated by Renzi.

Still, for U.S. litigants, Italy is actually quite smooth to navigate, and looks to remain so.  Like us, Italy does not object to alternative methods of service in the HSC, and is party to the Apostille, Evidence, Child Abduction, Adoption (1993) and Child Support (2007) agreements.  That’s all six Hague Conventions that the U.S. has ratified (soon to be seven, if you include Securities!).  A relatively good place for U.S. litigants, if you can believe it.

And my wife loves the place, so we’re going back.

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Peggy and me in Venice, 2015.

Rule #1 in pursuing discovery in other countries:  stop calling it discovery.  It’s evidence taking or, in many instances, evidence compulsion.  Why?  Because foreign legal systems, especially those in the civil law tradition, take a dim view of American-style discovery.  When a U.S. litigator comes at them with a subpoena, walls get thrown up rather quickly, and the litigator is left out in the cold, often not understanding why.

The distinction between “taking” and “compulsion” is critical to actually getting at the evidence sought.  American lawyers serve subpoenas on third parties as a matter of course.  We really don’t see a problem in the practice because it is so commonplace in U.S. practice.  When the U.S. third party receives a subpoena, they usually don’t take it personally because, again, it is so commonplace.  But a subpoena is by its very nature a coercive document.  Essentially: produce what I seek or else

The “or else” is what makes standard demand language so dangerous when attorneys try to serve a subpoena overseas.  Technically, a U.S. subpoena can’t be served abroad (at least not with any real effect), but the service technicality masks the real problem with subpoenas.  They’re actually counterproductive because they leave a sour taste in the third party’s mouth– a taste of vinegar, as it were– and fail to actually get at the evidence sought.

Very often, the more practical avenue is to tell the third party about the action and simply ask for the evidence:  “My dear Herr Schmidt, would you kindly provide me a copy of (document)?  It is an important piece of evidence in a case that my client is pursuing, and we would appreciate your gracious assistance.”

That’s the honey.  And it catches a whole lot more flies than the vinegar.

Of course, certain formalities might be necessary, such as legalization, a Hague Apostille, or an appropriate privacy release signed by the party-opponent.  Moreover, blocking statutes may prohibit the release of information for use in U.S. litigation (Swiss banking laws are a ready example).  But the cordial & direct approach might be the best first step before proceeding to the more formalized Letter Rogatory or Hague Evidence Request.*

 


*Hint: a Hague Evidence Request really is just a Letter Rogatory at its core.  The Hague Evidence Convention eliminates some costs and procedural barriers (eg: the need for diplomatic channels), but it does not overcome the need for a foreign court’s involvement.