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 in Europe through a British distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.
[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 British company at its office in Berkshire. 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 Joe Bob the Process Server to pull the paperwork together, and then you wait.
Three months later, you get a nasty-gram from the a solicitor in London, telling you that “oh, sorry, dear boy. Quite bad form. You’ve blundered the whole thing.” [That’s nasty in English legal circles. And it’s funnier if you read it in Hugh Grant’s voice. It’s nastier if you read in Ralph Fiennes’ voice… as Voldemort.]
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].
- Joe Bob didn’t know that subpoenas aren’t covered by the Hague Service Convention in a way that confers any coercive effect on them (they’re covered by the Hague Evidence Convention).
- Even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
- Plus that, you can’t simply “serve” a subpoena. It doesn’t work that way if you want it to actually carry force. You have to send a Hague Evidence Request through the appropriate channels, and ask an English court to compel production.
- And what’s more, the British have indicated that they rather like Article 23 of the Evidence Convention. Sorry, that’s just the way it is. There are certain exceptions to their Article 23 declaration; your request has to be written in just 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 (condensed from this):
- Take the words “any and all”, and eliminate them from your vocabulary. Seriously. They are the hallmark of good old ‘Murican discovery, and even the Brits hate that. So do the French, the Chinese, the Germans, 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.
Just hope the custodian of documents isn’t this guy–>
No, really, this guy is a twit. And apparently, he now fancies himself a rock star. Sheesh.
[I enjoyed the original British version of The Office far more than the successful American version. Both make you want to cringe, but David Brent was simply funnier than Michael Scott.]