[Resources at the outset: (1) As of summer 2020, Viking Advocates has suspended work in evidence compulsion, but we can happily refer clients to Ted Folkman, who publishes Letters Blogatory and has a wealth of experience in cross-border litigation procedure. He can be reached via his firm’s website here. (2) The Hague Conference has published a highly anticipated Guide to Good Practice on the use of video-links in cross-border depositions. Handy stuff, and available for no cost in PDF form here. Now, on with the show…]
You can’t just serve a subpoena in France.
You can’t just serve a subpoena in China.
You can’t just 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 just “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 necessarily 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 1970 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. Pretty straightforward, right?
Wrong. Subpoenas are not “Judicial (or) Extrajudicial Documents” for the purposes of the Service Convention– at least, not with any teeth. 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 off 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.
THREE CARDINAL RULES for Evidence Requests:
- 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**).
- 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…
- Hire local counsel in the foreign jurisdiction. At the front end, they’ll help 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. It turns out that Ireland operates similarly. Japan is also not party to the Evidence Convention, and it’s a very tough nut to crack regardless.