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 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 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.

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

We saw it coming, SI.
  • Karma-Hunter

    Hi Aaron. I got divorced in California over 10 years ago. I got married in Mexico. I’m a US citizen and so is my ex-wife (she became a US citizen before the divorce). I’m living in Mexico now and she is living in the USA. Although I’m divorced in USA, I’m not in Mexico (according to Mexican Law). I already talked to a mexican lawyer and he told me that since my divorce was final in US, all I need is a “exhorto” (mexican legal communication between judges) which I believe it could be translated as a “Letter Rogatory”. Will this has to go through the Hague Convention “thingamajig”? Can I petition at my local superior court in California (I travel quite often back to the US to see my daughters) for this document? Thanks in advance.

    • That wouldn’t be a Hague Service issue, because you wouldn’t actually be serving anything. A Letter Rogatory is precisely what you describe an exhorto as being– a communication between judges. (See here for more on that instrument, understanding that the uses I describe in the post do not constitute an exhaustive list… ).

      If I understand the Mexican attorney’s comment correctly, he suggests that the way for Mexico to recognize (and somehow adopt?) the California dissolution order is if the California court asks a Mexican court to do so. A direct answer to your question: yes, you can petition the California court that issued the divorce decree.

      You’ll definitely need counsel to assist on it, but it’s not the sort of instrument most lawyers ever work with. Once you have a California attorney, I’d be happy to weigh in.

  • Alex Fields

    Do you know whether Mexico requires that deposition questions be written out in full and submitted along with the Letters of Request to the Mexican Central Authority? The Hague website appears to suggest this. See The Hague website also suggests that a Mexican secretary/law clerk will take the deposition by reading only the pre-submitted questions. In other words, a US attorney would not be permitted to take a deposition in Mexico unless the witness voluntarily submitted to the deposition?

    • Yes, you’re probably right on the mark there.

      The questions must be submitted in full as part of the Letter of Request (explicitly stated, as you indicate), and it’s rare anywhere in the civil law world that the American lawyer would administer the questions. In civil law systems, the lawyers generally don’t ask questions of witnesses– the taking of evidence is the responsibility of the court. As such, they don’t even contemplate lawyers conducting examinations of witnesses.