[Originally published at vikinglaw.us]
Subpoena, in Latin: “under penalty”.
Subpoena, in American English: show up or else.
It isn’t really Latin—Julius Caesar would look at you funny, because it’s not really a word. We made it up. But a subpoena is nonetheless a critical instrument in American legal practice.
Essentially, it is an order to produce or appear, and it carries significant coercive effect. Disregard it, and the consequences can be expensive. Refuse it without cause, and sanctions can make your life difficult. But all this presupposes that the recipient is subject to the jurisdiction of the court issuing it. Once it leaves its own jurisdiction, a subpoena becomes nothing more than a wish list—and a clumsily worded one, at that. A subpoena’s coercive effect is revived only by statute or by court order in the jurisdiction where it is to be served (domestication).
If it crosses state lines, say from Florida or Georgia to New York or Minnesota, domestication is fairly pro forma. But when it crosses an international boundary, it cannot regain its coercive effect.* It becomes a simple piece of paper and, legally speaking, is reduced to a mere request.
Practically speaking, the demanding syntax of a subpoena can serve to irritate the recipient and anger foreign legal authorities. Legally speaking, it is often fatal to its own objective. So what does a practitioner do to compel the evidence she needs from a third-party witness or custodian located abroad?
The simple answer: a Letter of Request. Unfortunately, the answer is the end of its simplicity. A request to compel production (testimonial or documentary) must be routed through the courts of the foreign country.
And you must understand that the Hague Service Convention does not restore the coercive effect of a subpoena. Rather, the Hague Evidence Convention governs the conveyance of requests to compel evidence. And that treaty is merely a procedural aid. It really doesn’t do a great deal for American lawyers seeking discovery. That is not to say it isn’t helpful—quite the contrary—but it is not substantive in any way, and it does not oblige foreign authorities to lend assistance.
Meticulous crafting of the request is critical, and that requires adherence to several cardinal rules… which we’ll be happy to tell you about when you call.
* One exception: a subpoena may be served on a U.S. citizen, national, or permanent resident pursuant to 28 U.S.C. §1783 and Fed. R. Civ. P. 45.