Scratch My Back (1920) . Via Wikimedia Commons.

To American lawyers, and even to American “civilians”, a subpoena serves two purposes.  Obviously, it is used for compulsion of evidence (either testimonial or documentary).  That’s the easy description of a subpoena’s purpose.  And it’s the one everybody knows about.  In short:  do this or else.  The third-party’s response is either to ask a court to quash the subpoena, or to comply with it.

But a subpoena also provides protection to cooperative third-parties who fear collateral litigation or damage to a business relationship (absent that compulsion).  In short:  do this, or else… wink, wink, nudge, nudge.  The third-party’s response is a sigh of relief, because they can then tell somebody else, “sorry, I had to comply– it was a subpoena.”

Rarely, if ever, do we simply ask a third-party to produce evidence without sending them a subpoena.  This document is a routine instrument of litigation, and it doesn’t raise hackles the way it might in another country.

But when evidence is sought outside the United States, a subpoena carries no coercive authority.*  As such, the compulsion purpose can’t be fulfilled and, consequently, the protection goes away, too.  The document’s dual purpose simply cannot be fulfilled, so it becomes nothing more than a wish list.  A letter to Santa Claus, if you will.

Frankly, the smartest way to get to the evidence may be to simply ask for it.

Cooperation.  Playing well with others.  Golden Rule.  Quit being so cynical!

Sure, there may be strategic reasons for not going that route.  Sure, the third-party may be a parent or subsidiary of a party-opponent, in which case the mere question would be met with a giggle and flat refusal.  But foreigners– especially in continental Europe– are often more willing to produce without compulsion because doing so is more routine in civil law jurisdictions.  Of course, this is because in the civil law, evidence gathering is usually undertaken by judges, rather than lawyers, so there’s an implication of coercion.  But even parties in common law jurisdictions could be forthcoming– unlike their U.S. counterparts.  Simply put, our response might be “sure, if you send me a subpoena,” while their response might be “sure, if you send me an airbill for the shipment.”

If you can’t get it by asking, then you’ll have to compel.

And compulsion is far more complicated than simply filling out a form.  Whether by a traditional Letter Rogatory or a Letter of Request under the Hague Evidence Convention,** very careful planning and drafting are necessary, and the effort may be rejected in whole or in part by a foreign court.  Remember– Full Faith & Credit evaporates at our shores.  The only basis for a foreign judge to grant such a request is comity.***  Period.  There is no treaty, no statute, no doctrine of international law that mandates execution of that Letter.

You must rely on the mood of a foreign judge.


* Repeat after me.  You can’t just serve a subpoena abroad.  Exception: § 1783 subpoenas served on U.S. citizens.  But even that statute flubs things.

** Truly, they’re the same thing.  Letters Rogatory are communications from judge to judge, usually transmitted through diplomatic channels.  Hague Evidence Requests are communications from judge to judge, that specifically don’t have to go through diplomatic channels.

*** Otherwise known as “you scratch my back, I’ll scratch yours.”  Yeah yeah, technically, it’s called “mutual judicial assistance.”  But yeah, back scratching.  U.S. courts are far more willing to cooperate, in large measure because they have a statutory basis (28 U.S.C.  § 1782), but foreigners aren’t as forthcoming with help.

Palace of Justice, on Plaza de Bolivar, Bogota. Kamilokardona, via Wikimedia Commons.

Most of us in the U.S. have a fairly warped image of Colombia in our heads– usually something to do with cocaine or a big emerald the size of your hand.  If it’s not Pablo Escobar in (pick a movie about the drug trade), it’s Michael Douglas sliding down a rain-soaked hillside after Kathleen Turner in Romancing the Stone.

Oh, yeah, and then there’s Shakira… whose Hips Don’t Lie.  She’s Colombia’s biggest export of late.

But there’s quite a bit more to this South American nation than drug trafficking and pop culture, and litigation involving legitimate Colombian companies is picking up lately.  For about four years now, serving process in Colombia has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

Some background is in order, if you’re so inclined, before we cut to the chase.

Now, for the chase scene.  Here’s how service is done in Colombia:

Colombia in the Hague Service Convention

The Convention only entered into force for Colombia in November, 2013, and the Colombians have yet to make their declarations known to the Hague Conference.  That’s such a short time that they really don’t have much of a track record for Hague Service requests– by comparison, Mexico took a decade to really hit its stride, make its declarations known, and get the job done… but serving there is still not smooth.  For my money, you’re best served (very bad pun intended) to stick to what’s known on Colombia.  Don’t assume, just because they haven’t said anything, that everything’s jake and you can use Article 10.  It ain’t.

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. Colombia’s declaration to Article 5(3) only says that they’d appreciate having your request completed in Spanish– there’s no real requirement indicated.  Seriously– just that they’d appreciate the form being in Spanish– although they recognize that Article 7(2) says it doesn’t have to be.  The reality is that if you don’t translate the served documents into Spanish, your request will probably be rejected, if not by the Central Authority, then by the local officials who actually execute the request.  Plus that, always keep Due Process/Natural Justice requirements in mind.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely 9 months, perhaps a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Colombians haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in Colombia, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  It may take an interminably long time, and in many cases, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all.  Pablo Escobar may be dead, but hometown loyalty is not.

Colombia’s Central Authority information—as well as that of all the other countries in the treaty—can be found here.


You didn’t seriously think I’d do this without a picture of Shakira, did you?

Shakira looks like my wife’s cousin, the anesthesiologist.  [I actually spelled anesthesiologist on the first shot. Yes, I Googled it to make sure.]
CIA World Factbook, via Wikimedia Commons.

This blog carries a good many posts about country-specific procedures under the Hague Service Convention, and that’s completely intentional.  But until now, there hasn’t been a consolidated list of them, easy to click and access.  Here’s a handy index of “how to” posts for serving in the most prevalent countries in the Hague community:

And a trio of non-Hague countries for good measure (just because they aren’t Hague signatories doesn’t mean all is lost):

Curious about a particular country that isn’t listed here?  Check the search bar above, and if I haven’t written anything about it, by all means, tap me on the shoulder at hlb@vikinglaw.us with a suggestion.

RalphGL, via Wikimedia Commons.

Due Process isn’t solely an American idea.  It goes by other names in other countries (natural justice in Canada), but it is still a bedrock concept in most judicial systems that espouse fairness and the rule of law.  Germany, in particular, views due process rights as inherent and inviolable (this is the central tenet of its Basic Law, arising as a reaction to the horrors of Nazi tyranny).  Accordingly, when German authorities receive a Hague Service Request accompanied by a “date certain” summons, they are meticulous about ensuring that a defendant has sufficient time to retain foreign counsel to litigate.

Put another way, if a summons demands a German defendant’s appearance in a U.S. court on a specific date, the request for its service has to arrive at least two or three months in advance.  The bureaucratic wheels must turn and the defendant must be afforded time to answer.

Example:  the summons indicates a hearing date of June 1st.  The defendant should reasonably expect at least three or four weeks’ answer time,* so it has to be served by May 1st, if not earlier.  But that isn’t the date the request should arrive in Munich or Berlin or Freiburg.  Anticipate at least a two-month processing time by the German authority– preferably three (or even four).  This means that if the forum court demands the defendant’s appearance on June 1st, the request can’t arrive later than March 1st.   February 1st is better, and January 1st is better still.

An even more problematic variation:  any summons containing self-expiring language, such as a bankruptcy court summons to an adversarial proceeding.  “This summons shall expire 30 days following its issuance” is especially difficult to handle, as it leaves no latitude for the plaintiff to adhere to the mandatory nature of the Hague Service Convention.  In just about all cases, these summonses die sitting on the desk of a clerk– awaiting processing.

The only solution there is to remove all “date certain” deadlines or expiry language, if possible.  If the forum court won’t work with you, you’re in a Catch-22 situation.  Not fun.

And the only practical solution to the “date certain” dilemma:  push the thing out far enough to allow the Germans to do their job.  For Mexico, India, China, and Venezuela… give it at least a year.  No, seriously.  I mean it.

 


* NB: ordinary U.S. federal summonses carry a 21-day answer deadline (and most states between 21- and 90-day deadlines), but these are not problematic, as the required answer period relies on the date of service– not the court’s calendar.  These sorts of summonses usually sail through without any raised eyebrows.

Seriously, this is a nice way to spend an hour & a half. It’s no Citizen Kane, but who cares?

My wife gives me incessant grief because I enjoy romantic comedies.  I’m kind of a sap.  One rom-com that I absolutely adore is My Life in Ruins, a fun little film by Donald Petrie, set in Greece and starring Nia Vardolos (of My Big Fat Greek Wedding fame).   An essential element of the plot is the insistence by Vardolos’ character that they do everything far too slowly in Greece.  Personally, I don’t think so.  They’re simply more relaxed than the rest of us.

Okay, by common law standards, sure, Greece is pretty pokey.  But compared to other civil law jurisdictions, service of process in Greece is comparatively quick.  The procedure is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Some background is in order, if you’re so inclined, before we cut to the chase.

Now, here’s how service is effected in Greece:

Article 5 Service

  • Translate the documents. Greece’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority.
  • Sit tight.  It may take a while—likely four months or more from submission to return of proof.

Article 10 alternative methods

  • They simply aren’t available, because Greece objects to them all. Article 5 is the only way it can be done.

Seriously—that’s all there is to it.  Greece’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

“Wet ink”: exactly what you think it means.  (I like fountain pens.  They make my scribbly handwriting look almost elegant.)

An interesting quandary popped up a few weeks ago.  My client (all of my clients are fellow lawyers) told me that he’d just received the translations of the documents he needed to serve in China, and was about ready to file them with the court.

I was a bit puzzled.  What do you mean?  File the translations with the court?

“Well, yeah,” he replied.  “You told me I needed a wet ink* signature on the summons.  I needed the translation so the clerk could sign it.”

My response:  Yes, the clerk needs to sign the summons itself.  Not the translation.

Translations are required– or at least, necessary– for service in just about every country in the world that wasn’t once a British colony.  It’s even necessary in one jurisdiction that was once a British colony (je te regarde, Québec!).  But the translation is only sent so that the foreign government and the defendant know what the operative English documents say.  The translated copies are not operative in and of themselves.  As such, they don’t have to be filed with the venue court in the United States, and they don’t need to carry the same signatures & stamps as the originals.  They just need to tell a foreign reader what the stamps say.

In short, translate after you have everything filed.

Think of it this way– if the documents aren’t ready to hand to a process server in Pennsylvania or Idaho, they aren’t ready to hand to a translator.  They also aren’t ready to hand to someone like me for submission of a Hague Request.

Now, to be sure, there are a whole bunch of issues to keep in mind when selecting the right linguist.  There are many out there, both good and bad, so don’t just go for the low bid, because it really could come back to haunt you.  Keeping translation costs down is a challenge, but that’s under your control, Mr. or Ms. Litigator– not the translation provider.

Regardless, the timing of the translation is exceedingly straightforward: do it after you have the documents assembled, as if the defendant is in Pennsylvania or Idaho.  Everything that would be handed to a defendant here at home must be handed to a defendant in a foreign country– and if translation is necessary, every page, every word, and every text-bearing image must be formatted in the foreign language.


* Some Central Authorities in the Far East– especially in India & China– are skeptical of laser print copies of service documents.  They don’t necessarily view those copies as authoritative or as “bearing the imprimatur of the court.”  I think that’s with pretty good reason, frankly– anybody can print a document from PACER if they have access, so a little skepticism is warranted.  Still, the easiest way to overcome the skepticism is to have the court issue a summons over a “wet ink” signature, preferably with a stamp or embosser or a pretty red ribbon like they still have in some places.

This means the clerk has to actually pick up a pen (gasp!) and sign her/his name to the document.  This also means the clerk will look at you like you have three heads (it’s 2018, counsel– are you nuts?).  Just explain that, because the documents are going to a foreign country, they have to imagine it’s 1978 again.  Or point them to this blog.

Peace Garden– Manitoba/North Dakota border.  [Bobak Ha’Eri , via Wikimedia Commons.]
This blog is primarily geared toward U.S. and Canadian attorneys who need to serve documents off-continent.  For the most part, there’s no difference between what a U.S. lawyer must do and what a Canadian lawyer must do to serve in Asia or Europe or many other parts of the world.  Our systems are incredibly similar, and so are our respective declarations to the Hague Service Convention.  In short, if I say that “a Hague request must be filed with the appropriate Central Authority in (Country X),” that requirement applies whether the action is being heard in Manitoba or Mississippi.  What I haven’t addressed– until now– is how Canadian actions must be served in the United States.  So, for my colleagues north of the border…

Some background is in order, if you will, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad.  You have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.  But in the U.S., even that isn’t necessary.  It’s far quicker and more effective to hire local counsel to file a request under 28 U.S.C. § 1782 in whichever federal district the evidence (or deponent) is located.

As to serving Canadian process in the U.S.:

Article 5 Service

  • Translate the documents. The U.S. declaration to Article 5(3) requires that documents be in English.  For most Canadian actions, that’s no problem, but if the action is being heard in Quebec, then the documents are probably in French.  That triggers a natural justice question (due process in the U.S.), so it’s required even if the defendant speaks fluent French.
  • Fill out a Hague Service Request, referred to down here as a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by an authorized person (this is an exhaustive list)…

– Attorney General for Canada
– Attorney General, Ministry of the Attorney General or Minister of Justice of a province or territory
– Clerks of the courts and their deputies for a judicial or a court district.
– Central Authority for Alberta
– Deputy Minister of Justice, Northwest Territories
– Huissiers and sheriffs
– Local registrars
Members of the law societies of all provinces and territories
– Members of the Board of Notaries of the Province of Québec (for non-litigious matters only)

  • Send to Process Forwarding International (the outsourcing agent for the Central Authority), along with a check for US$95.
  • Sit tight. It may take a while—potentially a couple of months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on the venue court’s rules, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to Canadian litigants under Article 10(c).  Technically, it doesn’t even have to be a professional process server, although that’s a good idea– if you have “the plaintiff’s cousin Todd” do it, there’s a good chance something will get screwed up.  Easiest way to find someone: just Google “process server (city where the defendant is located)” and you’re good to go.  Just make sure that you write the affidavit in a form used by the venue court.

The U.S. declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

Thomas Luny – A British Frigate Backing Her Sails (public domain, via Wikimedia Commons)

Pardon the very esoteric pun.  For the uninitiated, see here.  You know the tune.  But most of us Yanks don’t know the words:

Rule, Britannia!
Britannia, rule the waves:
Britons never will be slaves.

Bear with me here.  From time to time, a problem will come across my desk that is simply baffling.  And frustrating.  American lawyers still occasionally fail to inquire about the proper procedure to serve an overseas defendant, preferring to simply do it the way they do it around home.  But it doesn’t work that way.  France governs how to serve process in France.  China dictates how to serve process in China.  And Britannia rules the ways a defendant can be served in Britannia.  (I’ll move on to an illustration.)

Billy Bob Baggins, an attorney in Bree, Missouri (the county seat of Eriador County), has the idea that, well, his case is being heard in the District Court for the 236th Judicial District of Missouri, so the Missouri Code of Civil Procedure* governs the manner in which a defendant must be served.  The MCCP says you should serve an out-of-state defendant by affixing a copy of the summons and petition to the door of his residence with blue masking tape (not red, not white, not battleship gray… blue).

Just inside the gate at St. Edmund Hall.**

When Billy Bob finds out his defendant, Jimmy Aragorn, is a Rhodes Scholar living in Oxford, England, he gets on the internet and finds the yellow pages for Oxford.  He finds a fellow he likes and instructs the fellow to print off the documents and take them to the defendant’s address, St. Edmund Hall, Queen’s Lane, Oxford OX1 4AR.  The process server knows full well that this situation is pretty silly– St. Edmund Hall is one of the colleges of Oxford University, and it houses well over a thousand students.  All of them have the same address– and they’re cloistered, protected by a security guard that isn’t about to let just anybody in the gate. –>

Despite the silliness, having been denied entrance to the college by the guard in the porter’s lodge (yeah, they still have those in Oxford), the process server dutifully pulls out the roll of blue masking tape he picked up at the Boot’s on High Street, and plasters the papers to the door of the porter’s lodge, with Jimmy’s name in big block letters on the front.

SUCCESS, he reports to the Missouri lawyer.  Tally ho, good chap… proceed with the hunt.  That’ll be a few hundred quid.

But it’s all for naught.

See, serving process in England is governed by the Hague Service Convention.  The Convention– and the seminal case regarding the Convention, Volkswagenwerk AG v. Schlunk (1988)– requires deference to the law of the location where a defendant is served.  And that requires plaintiff’s counsel to not only read the treaty, but also the destination country’s declarations thereto.

The law of the forum doesn’t apply.  And why?  Because the Supremacy Clause says so.

This is disconcerting to the judges of Missouri’s 236th Judicial District, because they keep their dockets moving like a well-oiled machine (really, they do!) and they don’t need some prissy Brit telling them how to run their courtroom.  Their ire is to no avail, because the U.K. has made pretty clear that American lawyers are welcome to hire a private process server– they just have to make sure the process server is instructed by a solicitor.  Their rules also require a bit more respect for due process than the blue tape method would provide.  College students are college students, so this particular defendant’s summons has a life expectancy of about thirty-eight seconds once a group of undergrads sees it on their way home from the Eagle & Child.**  In short, Jimmy never gets actual notice, and English law isn’t respected, so Billy Bob, back home in Bree, is out of luck.  The service he thought was solid, really isn’t.

Pity there isn’t a search engine that could guide him to the right way.

 


* Okay, so I tweaked the terms a bit.  We have trial court circuits in Missouri, not districts.  And our Rules of Civil Procedure aren’t referred to as a “Code”, so this MCCP is purely fictional.
** St. Edmund Hall, or “Teddy Hall” to those in the know, is the site of UMKC’s annual summer CLE Abroad program on English Law.  A heck of a nice way to spend two weeks in August.  The Hall sits less than a mile from The Eagle & Child— reputedly, J.R.R. Tolkien’s favorite pub, where he invented Hobbits and Orcs over several pints with C.S. Lewis.

The Eagle & Child, St Giles’ Street, Oxford.
Supreme Court of Spain in Madrid. FDV, via Wikimedia Commons.

Once we get past the romantic mental images of bullfights and Picasso and Hemingway running through cobbled streets in a white shirt & red scarf, Spain is rightly seen as a highly industrialized society– one with many of the same problems shared by its Mediterranean neighbors, and much of the same sunny, sophisticated allure.  Serving process in Spain is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.

Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how service is effected in Spain:

Article 5 Service

  • Translate the documents. Spain’s declaration to Article 5(3) sort of requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.*
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—anywhere from six to nine months, from submission to return of proof.

Article 10 alternative methods

  • Mail service may be available, depending on your venue, but it’s a bad idea anyway.
  • Service via local counsel is available under Article 10(b)– a procurador (a Spanish attorney, roughly akin to a French hussier de justice**) seeks the assistance of a local court to effect service without the involvement of the Central Authority.  It can save a couple of months or more, but the cost in many cases outweighs the speed.  If time is of the essence, though, this can be a fantastic option.  Just make sure local counsel is adept at Hague issues.

Seriously—that’s all there is to it in Spain, but don’t get excited.  Sure, the method is straightforward and simple, but it’s going to take a while, even if you have a lawyer handling things for you in-country.  The wheels just move more slowly than they do over here.

Spain’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.


* Technically, it’s not an outright requirement.  But the declaration is so vague as to essentially make it mandatory.  Rather like saying, “yeah, we’re not saying you have to, but don’t expect results if you don’t.”

**  I said roughly akin.  Not identical, not parallel…

A field of opium poppies in… England? (Andrew Smith, via Wikimedia Commons)

Cities, counties, and states across the country are launching an avalanche of lawsuits directed at pharmaceutical manufacturers who allegedly colluded to overprescribe and overdistribute narcotic pain medications.  They’re joined by health insurance carriers, unions,  pension funds, and other interest groups in perhaps the most massive group of cases in history.  See here for just the latest (at the time of this writing) New York Times story on the issue.  I have to disagree with the Times on one point: this is far bigger than the tobacco litigation of the 1990s.

The big name defendants:  Amerisource Bergen, Pudue Pharma, Mallinckrodt, Jansen, even Johnson & Johnson (yeah, the baby shampoo guys!).

But a little less known are the foreign companies named in many of the suits… Allergan plc (formerly Actavis plc), Mallinckrodt plc, and Teva Pharmaceutical Industries Limited.  These defendants, barring an agreement to waive or accept service of process here in the United States, still have to be served pursuant to the Hague Service Convention.  Litigation teams cannot just assume that, because they’re already litigating other cases, it isn’t necessary to serve them.  Proper formalities must still be observed, and that means different things in different countries.

Specifically:

  • Allergan plc… Ireland
  • Mallinckrodt plc… England
  • Teva Pharmaceutical Industries Limited… Israel

Fortunately, none of those three countries are particularly arduous, but it is still important to know the differences between them.  They don’t all work the same– and they certainly don’t work the same as southern Ohio!