You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle. Discovery commences. In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a German distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun. The big enchilada streuselkuchen. The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to the light of truth and human understanding.
[The author intones, as if in a Gregorian chant…]
For you, glorious and gentle counselor, have preached the gospel of truth. You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.
[You’re getting a bit of a big head, don’t you think?]
You implore your fellow pilgrims to create an epistle of truth for the ages!
Alrighty, then. You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the German company at its office in Munich. She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.
Outstanding, you think, and off to the mission field you go. You plunk down $1,000 to have the subpoena translated into German, and send another $1,000 to Joe Bob the Process Server to pull the paperwork together, and then you wait.
Three months later, you get a nasty-gram from the the Justice Ministry in Berlin, telling you that “NEIN, MEIN HERR/MEINE FRAU. DAS IST UNMÖGLICH.” No, sir/madam. That is impossible.
Where did the wheels fall off?
- Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
- What Joe Bob didn’t know is that subpoenas aren’t covered by the Hague Service Convention (they’re covered by the Hague Evidence Convention), and even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
- Second, even if the Service Convention were right, and even if you signed the thing instead of Bob, the Präsidentin des Oberlandesgerichts München (the State Court President in Munich) is the Central Authority in Bavaria. Joe Bob erroneously sent the thing to Berlin.
- Third, you can’t just “serve” a subpoena. It doesn’t work that way. You have to send a Hague Evidence Request through the appropriate channels, and ask a German court in the right state* to compel production.
- Fourth, the Germans have blocking statutes that may prevent compulsion, and they’ve indicated that they rather like Article 23 of the Evidence Convention. Sorry, that’s just the way it is. But there are certain exceptions to the statutes and to the Article 23 declaration; your request has to be written in just the right way.
- Oh, and you didn’t say “bitte.” The Germans have a very rigid view of decorum. Where is your sense of propriety? (I kid. Of course, you said bitte. You just didn’t say it to the right person in the right way.)
So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.
Here are the THREE CARDINAL RULES for Hague 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 the Germans hate that. So do the French, the Chinese, the Brits, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!). You must be surgically specific in identifying what you seek.
- 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. 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.
Give me a shout if any of this doesn’t make sense. Enough said.
* Much like the U.S., Germany is a federal system, where some areas of the law are controlled at the national level, others at the state (“Land“) level.