An Alsatian calendar from long ago (it was part of Germany then).  Bibliothèque nationale et universitaire of Strasbourg, via Wikimedia Commons.

Last week, I went on a bit of a rant— my thinking was sparked by a highly informative post by Dan Harris at the China Law Blog, in which he rebooted an older column in Four Essential Principles of Emerging Market Success.  His original (2004) commentary is even more prescient today as manufacturers and investors shift away from China and seek new opportunities in other emerging economies like Vietnam, Turkey, and Indonesia, just to name a trio.  As it turned out, when I read Dan’s update, I had just seen a prospective client walk away from a discussion because he didn’t like the bad news I had to give him.  That news went to the heart of Dan’s thoughts on doing business anywhere abroad, namely: Things will be different. Very different.

Applying those thoughts to what I do, my rant pressed the hard truth that, despite what we Americans might think, other countries do things differently.  Their systems of justice are often markedly different, and their viewpoints almost always divergent from our own.  We American lawyers have an obligation to recognize this fact when we pursue litigation involving offshore defendants and third-parties.

An additional piece of Dan’s advice to business people seeking to operate abroad:  Exercise Extreme Patience.

[E]verything takes twice as long as you think it will. If it takes twice as long in the West, triple that in emerging market countries.

That bit of wisdom has even more bearing on what I do.  But his math doesn’t begin to describe the disparity between American practice and that of our friends abroad.  A quartet of my own posts touch on the issue of time in serving defendants under the Hague Service Convention:

The takeaway from all of those is: relax.  This is gonna take a while, and very often there’s nothing you can do about it.

In our own system, service of process can be done in a matter of hours.  Literally– you can sometimes measure the time from engaging a process server to proof-in-hand with a stopwatch.  But when you’re serving in Germany, Switzerland, or Korea, that stopwatch becomes a calendar.  When you’re serving a defendant in China, India, or Mexico, that calendar becomes two or three calendars: (1) this year, (2) next year, and (3) maybe even the year after.

Point is, attorneys are an impatient breed.  An old friend (a retired Army JAG officer) once called us the most helpless race of people on the planet.  Put those two thoughts together and the long time required to serve overseas drives us nuts, and we want to lash out like a temperamental four-year-old.  We’ve got to get over it, because it can’t be circumvented.

Fortunately, it also can’t be held against us.  As long as we’re reasonably diligent in getting the procedure rolling along, Rule 4(m) gives ample safe harbor.  State doctrine almost always reaches the same result, whether by rule or by case law (sorry, Michigan & Wisconsin… you guys have a challenge).

But we must embrace the fact that the American demand for DO THIS RIGHT NOW OR I WILL HOLD MY BREATH UNTIL I TURN BLUE simply doesn’t fly “over there.”

They just giggle a bit and move our request to the back of the line.  And they know we’ll start breathing again when we pass out.

Ahem… nope.

Ansgar Koreng, via Wikimedia Commons.

 

Supreme Court of the Republic of Cyprus. Seksen iki yüz kırk beş, via Wikimedia Commons.

I say all the time that we ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  Serving process in Cyprus is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Cyprus has a rather complicated history, even in recent decades– and the island has been divided between Greek and Turkish ethnicities in the south and northeast, respectively, since the 1960s and ’70s.  Though not as bitter as several decades ago, the division nonetheless remains, and service in the Turkish region may not be as straightforward as in the Greek.  The following focuses mainly on the Greek portion of Cyprus, although Greek and Turkish officials may cooperate to effect service on behalf of foreign applicants.

Some background on the Convention is in order, if you’re so inclined, 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 confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena in Cyprus.  At least, not if you want it to actually work.  Instead, you have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is accomplished:

Article 5 Service

  • Translate the documents.  Although Cyprus’ declaration to Article 5(3) does not specifically require translation into Greek or Turkish, defendants may reject documents not provided in a language that they understand.  As such, omitting translations could mean failure.
  • 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.
  • Wire €21.00 to the Central Authority in Nicosia.  If your bank is like mine, it’ll cost you more to send the wire than the wire itself.
  • Send the hard-copy USM-94 and service documents to the Authority, in duplicate.
  • Sit tight. It may take a while—likely 3-5 months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on where you are, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • Cyprus also allows applicants to directly avail themselves of judicial officers and other competent persons to serve, but the Cypriot declarations are mute as to who is and is not competent.  Frankly, the Central Authority is pretty good, so I couldn’t strongly suggest going this route.

Cyprus’ 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.

 

NASA photo.

With all the America-First hype swirling about the country, it’s never been more important to remind lawyers that things simply don’t work over there the same way they work here.  Global commerce isn’t going away, folks.  Tariffs notwithstanding, we still need goods from abroad to carry on our daily lives, so it’s still critical to understand the ways in which foreign systems operate.  We still have to sell our stuff abroad, or our economy will collapse in short order.  We still have to get all the K-Pop we can absorb.

Okay, that’s perhaps a bit much.  But still… we can’t just withdraw from the world.  And that means we have to recognize that other countries operate differently.

Last week, I got an email from a grumpy lawyer asking me if I had a guy in China* who could serve papers on a defendant.  When I told him that it doesn’t work that way over there, he insisted that all I had to do was hire a process server to deliver documents to his defendant.  He just wanted to know if I had a guy.

Again, it doesn’t work that way over there, I said.  You have to involve China’s courts in order to properly serve.   That requires a Hague Service Convention request.

His response: well, the case is in Illinois** so Illinois rules dictate how it’s done.

My counter-response, paraphrased:  c’mon, dude, that doesn’t even apply if you’re serving in Florida.

He proceeded to tell me that he disagreed with my conclusions– after I cited no less an authority than Sandra Day O’Connor– and that I didn’t know what I was talking about.

A Rolodex ™. What we used before phones all came with a “Contacts List”.
ArnoldReinhold via Wikimedia Commons.

Which begs the question… if you know so much, why are you contacting me for help?  Because you just want to use my huge Rolodex? 

Essentially, yes, it seems.  We parted ways– no striving mightily, no eating or drinking as friends.  Sometimes it’s better to simply let a prospective client walk away, no matter how valuable their fees might be.

But lest I let my schadenfreude get the best of me, the only way this thing is going to boomerang on him is if the defendant’s lawyer knows better, but such unfamiliarity is widespread– on both sides of the “v” in a case header.  Frankly, the Chinese defendant likely won’t even appear, so the grumpy lawyer will get a default judgment that can’t be enforced… but that’s another post entirely.  In short, his client will pay out a bunch of fees for naught, and that bothers me, because we lawyers are supposed to know better.

Since the start of our trade war with the Chinese, my friend Dan Harris has recognized that attention is shifting away from China to other developing economies.  That’s great for his firm, which doesn’t focus exclusively on China, but perhaps not so much for the ever-spectacular China Law Blog.  Discussing his clients’ moves to Vietnam, Turkey, Indonesia, etc., he reiterated his mantra last week that doing business abroad–anywhere abroad— requires us to jettison our assumptions.

Things will be different. Very different. Things you take for granted in your home country might not exist in the emerging market country. Things you take for granted in your home country might be the exact opposite in the emerging market country. Things you think will be totally different in the emerging market country may be exactly the same. Things you thought you knew about emerging market countries based on what you know from another emerging market country may be completely different in a neighboring country, or even in another region within the same country.

Heck, that even holds true right here at home.  Things work differently in Florida than they do in Illinois.  Things work differently in Missouri than they do in Kansas.  Trust me– I live two miles from State Line Road.  Those Jayhawkers are a tad bit off-bubble.

But it’s always tough to convince American lawyers that judicial systems– and the rules that come with them– are different in other countries.  As much as it might rankle our sense of superiority victory & pride from having defeated the Nazis in 1945… it ain’t all about us, folks.  The rest of the world marches to the beat of a different drummer, and it ain’t necessarily Buddy Rich.

When an Illinois litigator needs to serve a defendant in China, he absolutely MUST adhere to Chinese law.  Rankle or no rankle.  To do otherwise violates our own law.

Justice O’Connor said so.

* Not actually China.  Names have been changed to protect the innocent obstinate.  If it were actually China, I would have also told him that the guy who tries to serve papers personally in China had better be a court official– or he’s going to jail for a very long time.

** Not actually Illinois.  Ibid.

Huawei’s leadership respond to Trump ban.

Big in the news of late:  Huawei and the Trump Administration’s ban.

And from late last month, in the South China Morning Post:  Who controls Huawei? Chinese telecoms leader’s ownership structure explained in more detail.  To hear the SCMP tell it, Huawei is owned and, at least partially, controlled, by the Chinese government.  This control comes by way of a labor union committee’s direct ownership, but that committee is itself state-controlled.  By the transitive property… you get the picture.

So what if Huawei (or any other ostensibly state-owned entity in China) is sued in the United States?  Obviously, jurisdictional questions must be addressed, but before they can be reached, service of process must be effected.  That can only happen pursuant to the Hague Service Convention.  And that can take a looooong time.  But the Foreign Sovereign Immunities Act (FSIA, 28 U.S.C. §§1330, 1602 et seq.) is also implicated.  And that causes more than a few ulcers in the plaintiffs’ bar.

In its press statements this week, Huawei’s leadership has responded to criticism that it is a state-controlled entity, which would give the PRC unrivaled power to snoop on companies and governments worldwide if Huawei equipment provides the backbone of the world’s 5G* rollout.  In short, says the company:  we’re independent.

Okay, let’s take them at their word and assume that to be the case.  An American lawyer sues them in, say, the U.S. District Court in San Francisco.  Said lawyer hires me to submit the Hague request (yes, I do that, dear reader), and we get the documents translated and off to Beijing.  Eighteen months later (yes, it takes that long– or longer), we get a response from China’s Hague Central Authority.  Congratulations, the documents have been served.

Except Huawei’s counsel files a 12(b)(4) motion, claiming that we didn’t follow the Foreign Sovereign Immunities Act (FSIA).  “We’re an instrumentality of the People’s Republic of China, so proper service on us must comport with 28 U.S.C. §1608, the service of process provision of the FSIA.”  And that’s an accurate statement– if indeed the defendant is state-owned.  They might go on to say that we omitted the “Notice of Suit” required by §1608.  A tough one to overcome?

Not really.  Their press claims could be used to directly refute the cite to §1608.  You can’t say on one hand that “oh, no, we’re not state-owned” and then argue on the other that “oh, yeah, we’re state-owned.”

But here’s the kicker:  it doesn’t matter whether they’re state-owned or not.  As long as the plaintiff follows China’s declarations to the Hague Service Convention, FSIA requirements are met naturally.

The Notice of Suit requirement?  Don’t worry about it– and don’t worry about translating the entire Act– because the Notice of Suit is a requirement of §1608(a).  It only applies where the foreign state (or political subdivision) is itself a defendant, and you’re serving that state by mail or diplomatic note.  Instrumentalities (ie: state-owned companies) are covered by §1608(b), which makes no mention of the Notice of Suit requirement.

Hague adherence is, by definition, adherence to §1608(b)(2):

(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state:

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; 

In short, don’t fret over FSIA… it’s really not that difficult.

*  If you’re not familiar with 5G, bone up on it, because it’s going to have a direct effect on everything you do in very short order.

** Be sure to amend the summons to reflect a 60-day answer deadline, rather than the standard 21-day (federal) or other (state) deadline.  28 U.S.C. §1608(d).

Charles Evans Whittaker Federal Courthouse, KCMO. Voidxor, via Wikimedia Commons.

I took Civ Pro from a giant.

When I say giant, I mean in the figurative sense, because he’s only 5’7″ or so, but this diminutive fellow remains among the most talented and effective teachers I’ve ever had.  He inspired me to wear bow ties, and illustrated the myriad types of joinder with a shopping bag full of beanie babies (I’m not joking).*  I grasped counterclaims and cross claims and third party claims pretty quickly– about the only things I grasped quickly as a 1L– because of an effective teaching tool.

The most basic subject he illustrated (sans plush toys), though, is the one that lawyers constantly forget, and which I constantly rant about:  pleading requirements.  In short…

FACT PLEADING

Articulate your causes for action, citing chapter and verse of the statute or precedent on which they’re based, and state facts to support your claims.  Flesh out your argument as best you can at the beginning, or get kicked to the curb.

NOTICE PLEADING

Best described by FRCP 8(a)(2):  “[A pleading that states a claim for relief must contain] a short and plain statement of the claim showing that the pleader is entitled to relief.”

Short and plain.  In other words, don’t get wordy about it.

Attorneys often forget that federal actions fall into the latter category.  That makes for significantly lower costs to serve abroad… if Notice Pleading is actually observed.  In an early post on this blog, I offered some tips in Keeping Translation Costs Down— chief among them being (1) keep brevity in mind and (2) avoid exhibits wherever possible.  I got even more practice-specific a year later in Keeping Translation Costs Down, Part Deux (for Patent Litigators), suggesting that a five- (or six-!) figure translation bill could be limited to just a few thousand dollars merely by referencing easily accessible patents instead of attaching them.

But it bears repeating: lawyers do not get paid by the word.  Translators, on the other hand, do.

Here in Missouri, we can’t get away from lengthy petitions in state court.  We’re a fact pleading jurisdiction, so we pretty much have to put our cards on the table early.  But in federal court, such lengthy pleadings are not only unnecessary, they’re often frowned upon.**  As such, my clients’ translation bills are consistently lower in federal court than in state court.***  And remember– if a defendant is to be served in a country that is party to the Hague Service Convention, odds are that translation will be required.  It is an unavoidable requirement in most of the non-Anglophone world.  So keep it short, and keep translation costs down.

* Jeffrey Berman, Associate Dean Emeritus at UMKC Law.  Still teaching, still hitting the ball out of the park.  And everybody who’s taken his Civ Pro class in the last two decades thinks of a whale and twin unicorns every time they have to join a defendant.

** Which begs another question: if you know you’re going to be removed, why not just file in federal court in the first place?  Yes, there are certainly strategic reasons to stay in a state venue as long as possible (see *** below), but if there’s no way to fight removal when it happens, a whole bunch of costs can be saved by just going federal to begin with.  Most notably, your number of documents to serve will be reduced because your timing is right, but you’ll also avoid lengthy pleading requirements.

*** A big exception to that conclusion: federal courts that require service of ancillary documents, Rule 4 notwithstanding.  Examples: civil cover sheets, ADR program guides, individual judges’ rules of practice, etc.  If they have to be served, they have to be translated right along with the summons and complaint.

 

Fidel Castro arrives MATS Terminal, Washington, D.C., April 15, 1959. Public Domain, via Wikimedia Commons.

The Trump Administration has fully implemented Title III of the Helms-Burton Act, which allows suits to proceed in U.S. courts against companies that do business in Cuba and profit from the use of property expropriated after the 1959 Communist Revolution.  Earlier this year, I posted the following illustration of how such a suit plays out:

An example: let’s say “Autohersteller GmbH“, a fictional German carmaker, wants to develop a parts plant outside Havana, and the Cuban state grants a 99-year lease to the land on which they build it.  Prior to 1959, the plot of land was owned by a group of citizens loyal to President Fulgencio Batista; after his overthrow, the Castro government seized the land and title thereto.

Sixty years later, those citizens and their kids now live in Fort Lauderdale, and if the Trump Administration reverses a quarter-century of waivers, they’ll be marching into the United States District Court for the Southern District of Florida and filing suit.  Not against the Cuban government– there’s no realistic mechanism for that.**

Instead, they’ll be suing Autohersteller GmbH for damages under Helms-Burton.

And I continued, with an admonishment:

Again, set aside any discussion of the practical impacts of the statute; but recognize that the only proper way to serve that company in Germany is by filing a Hague Service Request.  HBA establishes a cause of action (and, necessarily, jurisdiction) but does not override the procedural rules applicable to serving overseas defendants.  It does not supersede the mandatory and exclusive nature of the Hague Service Convention.  And it does not dispense with the defendants’ due process right to proper notice.

Plaintiffs, do it the right way, and remove at least one obstacle to an eventual verdict.

Let the tsunami begin…

Quito, Ecuador. Where Julian Assange is not. Diego Delso via Wikimedia Commons.

Last summer, service of process in a major case was effected via Twitter.  In Twitter Service Hits the Bigtime, I commented that such service was okay under FRCP 4(f)(3) because the more traditional means were foreclosed to the plaintiffs.  Wikileaks was on the hook, in the eyes of the S.D.N.Y.

Yesterday, Wikileaks’ founder, Julian Assange, was arrested in London following Ecuador’s backtrack fro granting him asylum.

So, does the DNC now have to try regular service in order to keep Wikileaks in the case?  Well, no– service was already effected in August.  But even if it hadn’t already been done, the plaintiffs still can’t identify an address for Monsieur Assange.  He’s in a jail cell in England, but that’s merely temporary, and it’s doubtful that he’s even going to remain in the UK for long.  The U.S. is actively pursuing extradition.  Sweden may follow suit, and maybe even other countries will seek to do likewise.  Hard to say at this point.

But it’s awfully clear that the Hague Service Convention isn’t in play here.  It’s not applicable if the defendant’s address is unknown.

Side note… a hat tip to Ted Folkman for some compelling thoughts in this morning’s Letters Blogatory post on Assange.  Charging Assange for publishing classified material– and having the charges stick– would put American journalists at risk of prosecution for doing their jobs.  Rather, says Ted, “I am happy that the grand jury has not charged Assange with espionage, but instead with conspiring with (Chelsea) Manning to steal secrets from the government.”  I couldn’t agree more.

Christchurch College, Oxford.

“Two things I know to be true:  there is no difference between good flan and bad flan, and there is no war in Albania.”

— William H. Macy as “CIA Agent Young” in Wag the Dog

A shameless plug there for one of my favorite movies. Not only was Macy the clueless CIA agent dressed down in Wag by Robert de Niro, but he was also clueless Oldsmobile salesman Jerry Lundegaard in another of my favorite movies, Fargo.  I have yet to see any episodes of Shameless, but any guy who can play clueless so well is… simply brilliant.  You just can’t pull off stupid unless you’re smart.  No, really.

But I was struck last month, as the big story broke about the payoffs made– and the cheating scheme embraced– by America’s well-heeled, to ensure their kids’ admission to America’s elite colleges.  As the first in a blue collar family to go to college, I had to giggle a bit because my challenge wasn’t getting accepted, it was paying for college. For thousands of college students, that’s still the worry.

As a big fan of Bill Macy, I had to wonder why, as brilliant as the father seems to be, how could his daughters’ just-as-seemingly-brilliant mother, Felicity Huffman (she of Desperate Housewives fame), think it was even necessary to pull this sort of stunt to ensure their success in life?  A head-scratcher for sure.

So charges have been filed against, among others, Huffman and the exceedingly perky Aunt Becky from Full House, Lori Loughlin.  They’ve been accused of colluding with university officials and/or buying into an SAT-cheating service, arranging big contributions in exchange for fraudulent test scores and fast-track admission to USC, Yale, Stanford… It all makes me wonder how the whole thing would play out if some of the coveted admissions slots were outside the United States.  Perhaps at Oxford or Cambridge or the Sorbonne in Paris?

Might the Foreign Corrupt Practices Act (FCPA) come into play?  Well, it depends.

An FCPA violation requires:

  1. a payment– literally anything of value,
  2. by a “proper person”– a U.S. citizen or entity, or any foreigner acting on that U.S. person’s behalf,
  3. to a foreign public official– including to candidate for public office or via an official’s agent/proxy,
  4. for a corrupt purpose– like, say, getting a kid into a college he would otherwise no hope of getting into.

If the foreign university in question is public, we might be looking at some FCPA icing on a garden-variety conspiracy cake.  Overseas, the status of a university isn’t as clear-cut as it might be here in the States.  Cal, Mizzou, and Rutgers are all public.  USC, NYU, Stanford, and the Ivies… all private.  Not so easy a distinction with Oxford or Cambridge.

But you have to wonder how many of the defendants in this case were also making payoffs to help little Timmy get into one of them.  The Justice Department may have yet another arrow in its quiver.

 

The better avenue to study opportunities in Oxford?  UMKC’s CLE Abroad program hosted over two weeks in July & August at St. Edmund Hall.

USS Cole, the ship at the heart of the suit. U.S. Navy photo.

Last fall, I posted “FSIA Service… it’s really not that difficult” following several very poorly titled articles describing the Trump Administration’s support of a foreign government’s argument in a sovereign immunity case.  Sudan had asserted that service on its Embassy in Washington was not appropriate under the Foreign Sovereign Immunities Act, and the Department of Justice weighed in on Sudan’s side.  The outrage from both left and right irked the hell out of me.  But the knee-jerk, non-lawyer reaction from the left– my own people, for crying out loud– really set my teeth on edge.  Yesterday, logic won.

Not to brag, but I picked the tally, right down to which single justice out of the nine would be on the wrong side of reason…

This is a pretty straightforward question, and one I suspect the Supremes will decide on a lopsided (8-1?) vote.***  It all boils down to this: The Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  And even when he is in Washington representing his government, the Vienna Convention on Consular Relations will thwart service on his person.

***  Thomas, J. in dissent, maybe.

Nailed it.  Yesterday, in Republic of Sudan v. Harrison, the Supremes held 8-1 (Thomas, J. dissenting!), that the Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  From the Syllabus:  “A foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister.”

Ah, bright lines.

 

 

 

Credit Suisse, one of the biggest banks in Zurich.  Which is saying something.  Dietmar Rabich / Wikimedia Commons / “Zürich (CH), Paradeplatz — 2011 — 1381” / CC BY-SA 4.0

I’ve seen a huge spike lately in the number of divorce attorneys calling about serving subpoenas on offshore banks.  The routine story: Spouse A (usually the wife, but not always) has learned that Spouse B (usually the husband, but not always) has tucked a few thousand dollars into some offshore account, usually in one of several countries that are famous for stringent banking secrecy laws.  Switzerland, the Cayman Islands, and the Channel Islands are those that come to mind, but protecting depositors’ privacy is fairly universal in the industrialized world.  As such, the calls haven’t been limited to the famous banking havens.

Whatever the venue court might call the financial declarations in a dissolution, both spouses are required to disclose assets, liabilities, income, and expenses. Everybody must lay all of their cards on the table in a divorce action, and I haven’t seen a state yet that exempts offshore assets from the disclosure requirement.  You tell what you have or you face the judge’s wrath.  Pretty simple, right?

Nope.  Amazingly, there are still a whole bunch of brilliant litigants out there who think they’re smarter than the judge– if I hide my cash in Zurich, there’s no way to prove I have it, because that’s where all the Nazis kept their cash and we still don’t know how much is squirreled away there!

Well, I hate to be the bearer of bad news, Spouse B.  The Swiss have opened up their legal code to allow for disclosure in matters of fraud.  They’ve taken great pains to return all that cash the Nazis squirreled away.  You’re not going to be able to hide your fortune away from the world and then show up in Zurich like Jason Bourne to get cash out of his numbered account.  We can find out what you’ve hidden.  The only trick… is how.

So back to the heart of the call from Spouse A’s lawyer.  How do you serve a subpoena on an offshore bank?

Short answer: you don’t.  At least, not if you actually want it to work.  Yes, theoretically, you can serve a subpoena under the Hague Service Convention– in some places.

In other places, various authorities may view your service attempt as a usurpation of judicial authority and reject your request.  More to the point, even if the thing could be served, it has no teeth, so good luck enforcing it.

Serve a U.S. subpoena on a Cayman bank, and the bank will rightly ignore your demand.  Likewise a Swiss bank or a Jersey bank or Singaporean bank.  They’re all going to giggle at you just a bit while sticking your subpoena quietly in a drawer. Why?  Well, a subpoena loses its coercive effect when it leaves its own jurisdiction– and it only gets it back if (1) a statute automatically confers it– see the Uniform Interstate Depositions and Discovery Act (UIDDA)– or (2) if a court in the foreign* state blesses it with that court’s authority– as in a garden variety domestication action.

But there is no treaty comparable to UIDDA.  And an offshore foreign** court is just not going to rubber-stamp a New York subpoena like a Missouri court would (Full Faith & Credit is not a thing overseas).

The alternative?  A Letter of Request pursuant to the Hague Evidence Convention.  That comes with some Cardinal Rules, which I outlined more thoroughly in late-2016:

  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.
  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.  They’ll help us/you draft the request.  And they’ll appear for you in the foreign court fielding the request.

Pertinent to the questions here is a variant of #2.  Not only can you indicate that the information sought will be used to impeach Spouse B’s Asset & Liability Statement, but also indicate that the U.S. court needs to adjudicate an allegation of fraud.  Courts around the world take a very dim view of lying to other courts– whether by commission or omission.  A properly formatted Hague Evidence Request that includes a fraud allegation… better odds of success.

So don’t just serve that thing.  Even just starting the proper procedure may prompt the opposing spouse to come clean.

 

* Foreign in the “across State Line Road” sense.  Not in the “you need a passport to go there” sense.

** Foreign in the “you need a passport to go there” sense.