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 distributor in Manitoba, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun. The big enchilada pack o’ Timbits.* The damning piece of documentary evidence that will vindicate your client’s rights and body-check the defense into the glass.
The announcer in your head: Plaintiff’s Counsel has the puck… he shoots, he scores!
[Your heroics rouse up the crowd, and they politely chant your name!]
The announcer, again: Take off, eh? You’re dreaming again, thinking you’re in the Stanley Cup Finals, but you’re really in a Bob & Doug sketch.
Okay, then. In the real world, 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 Canadian company at its office in Winnipeg. 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 rink you go. You plunk down $1,000 to have Joe Bob the Process Server pull the paperwork together, and then you wait.
Three months later, you get a polite note from the Ministry of the Ontario Attorney General. “Well, gee, eh? We’re really soory about this, but no. You can’t do that. Soory.”
So, where did the wheels fall off?
- For starters, you let a process server—who does not have a law license—tell you how to handle an intricate transnational legal procedure. He doesn’t know what he’s talking aboot, so 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— at least, not with any coercive effect.* They are, however, covered by the Hague Evidence Convention. Sort of.
- Even if they were under the Service Convention, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
- But Canada isn’t a party to the Evidence Convention anyway, so the idea of a Central Authority is out of the question.
- Regardless, you can’t just serve a subpoena. It doesn’t work that way– if you want it to actually compel anything. You have to petition the forum court to issue a Letter Rogatory, and then send it through the appropriate channels to ask a Canadian court in the right province to compel production.
- Oh, and you didn’t say please. The Canadians are some of the nicest, most polite people on the planet. But if you don’t reciprocate (or preemptively offer) that politeness, you’re toast.
- I kid. Of course, you said please. You just didn’t say it to the right person in the right way. A big pack o’ Timbits* would help.
So, let’s face off again, and try the right approach to getting the puck in the net.
Here are the THREE CARDINAL RULES for Hague Evidence Requests—and they apply equally to Letters Rogatory:
- Take the words “any and all”, and eliminate them from your vocabulary. They are the hallmark of good old ‘Murican discovery, and the rest of the world hates that. The Germans hate that. So do the French, the Chinese, the Brits, aaaaaand… 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 and will appear for you in the foreign court. If you have the right one, you won’t even have to pay the State Department $2,275 to hand the thing off to the Canadians! It will cost you a few hours of the Canadian lawyer’s time and, probably a pack o’ Timbits.**
Give me a shout if any of this doesn’t make sense.
* Look at it this way: a New York subpoena carries no weight in Missouri until a Missouri court domesticates it. Just serving it doesn’t magically confer coercive effect. Likewise, a U.S. subpoena (state or federal) has to involve Canadian judicial authorities to have any teeth.
** If you don’t know Timbits, you ain’t lived, friend. They’re Canadian crack.