The Supreme Court issued a decision in May that seems, at least on its face, to be absolutely groundbreaking in transnational litigation. And a few otherwise cogent blogs have posited recently that it will mean great things in the discovery field, now that subpoenas can be served by mail. Both of those statements are quite incorrect. The decision will have minimal effect anywhere but perhaps Houston and Kansas City, and it will have zero effect on discovery, electronic or otherwise. Zero.
For starters, the Water Splash opinion is anything but groundbreaking. It merely resolved a circuit split that didn’t amount to a whole lot. The 5th & 8th Circuits, along with a number of federal districts, had previously held mail service under the Hague Service Convention to be invalid. The 2d and the 9th, where substantially more lawsuits target foreign defendants, took the opposite (correct) view. My take on the whole thing: big deal. Mail service is usually a bad idea regardless of its legal validity.
More flawed, though, is the idea that the Hague Service Convention, in light of Water Splash, allows for service of subpoenas by mail. It doesn’t. It never did. It never will. At least not with coercive effect.
Because subpoenas aren’t considered judicial or extrajudicial documents covered by the Service Convention. *
Subpoenas are a construct of the common law, and even other common law countries don’t use them nearly as often as we Yanks do. In civil law countries, they’re unheard of, because evidence is not produced at a lawyer’s demand. It’s produced because the judge wants the evidence and issues an order saying so. I say this repeatedly: you can’t simply serve a subpoena abroad. You can’t. Period. There is no variance on this.
And if you can’t serve it, the Service Convention isn’t what you look to in determining how to make the witness or custodian cough up the information you seek. The Hague Evidence Convention provides the avenue, and it does a rather poor job of it by U.S. standards.**
To compel production for a U.S. action in a fellow Hague country a Hague Letter of Request is necessary. And a word of caution: STOP CALLING IT DISCOVERY. It’s evidence taking–or more accurately, evidence compulsion in most cases. Call it discovery, and your request will be rejected by the foreign judge without so much as a thank you.
You can get to the evidence. It just requires significantly more effort than dropping a subpoena in the mail.
Water Splash’s effect on the undertaking: Nada. Zip. Zilch.
* A clarification is in order– and I thank Ted Folkman of Letters Blogatory for pointing it out: yes, a subpoena is unquestionably a judicial document, and it can theoretically be served under the Hague Service Convention. But not with coercive effect— any more than a New York subpoena can be effectively served in Missouri without the assistance of Missouri courts. In many places around the globe, a subpoena is viewed as a tool of all-too-zealous lawyers who (in the view of our common law brethren) overreach, or who (in the view of our civil law cousins) usurp the authority of foreign courts by barking demands at their citizenry.
** That is not to say it’s a bad treaty. It just doesn’t do much for U.S. litigators in the way that we might hope. In reality, it only knocks down a couple of procedural barriers that hamper the old fashioned Letter Rogatory procedure. At its core, everything is still up to the foreign judge, in a manner governed by foreign law. This makes U.S. judges quite happy, of course (<– sarcasm). Article 23 constitutes a big, ugly middle finger to American lawyers who need documents located in a file cabinet somewhere in Europe.