To American lawyers, and even to American “civilians”, a subpoena serves two purposes. Obviously, it is used for compulsion of evidence (either testimonial or documentary). That’s the easy description of a subpoena’s purpose. And it’s the one everybody knows about. In short: do this or else. The third-party’s response is either to ask a court to quash the subpoena, or to comply with it.
But a subpoena also provides protection to cooperative third-parties who fear collateral litigation or damage to a business relationship (absent that compulsion). In short: do this, or else… wink, wink, nudge, nudge. The third-party’s response is a sigh of relief, because they can then tell somebody else, “sorry, I had to comply– it was a subpoena.”
Rarely, if ever, do we simply ask a third-party to produce evidence without sending them a subpoena. This document is a routine instrument of litigation, and it doesn’t raise hackles the way it might in another country.
But when evidence is sought outside the United States, a subpoena carries no coercive authority.* As such, the compulsion purpose can’t be fulfilled and, consequently, the protection goes away, too. The document’s dual purpose simply cannot be fulfilled, so it becomes nothing more than a wish list. A letter to Santa Claus, if you will.
Frankly, the smartest way to get to the evidence may be to simply ask for it.
Cooperation. Playing well with others. Golden Rule. Quit being so cynical!
Sure, there may be strategic reasons for not going that route. Sure, the third-party may be a parent or subsidiary of a party-opponent, in which case the mere question would be met with a giggle and flat refusal. But foreigners– especially in continental Europe– are often more willing to produce without compulsion because doing so is more routine in civil law jurisdictions. Of course, this is because in the civil law, evidence gathering is usually undertaken by judges, rather than lawyers, so there’s an implication of coercion. But even parties in common law jurisdictions could be forthcoming– unlike their U.S. counterparts. Simply put, our response might be “sure, if you send me a subpoena,” while their response might be “sure, if you send me an airbill for the shipment.”
If you can’t get it by asking, then you’ll have to compel.
And compulsion is far more complicated than simply filling out a form. Whether by a traditional Letter Rogatory or a Letter of Request under the Hague Evidence Convention,** very careful planning and drafting are necessary, and the effort may be rejected in whole or in part by a foreign court. Remember– Full Faith & Credit evaporates at our shores. The only basis for a foreign judge to grant such a request is comity.*** Period. There is no treaty, no statute, no doctrine of international law that mandates execution of that Letter.
You must rely on the mood of a foreign judge.
* Repeat after me. You can’t just serve a subpoena abroad and expect it to carry any weight. Exception: § 1783 subpoenas served on U.S. citizens. But even that statute flubs things.
** Truly, they’re the same thing. Letters Rogatory are communications from judge to judge, usually transmitted through diplomatic channels. Hague Evidence Requests are communications from judge to judge, that specifically don’t have to go through diplomatic channels.
*** Otherwise known as “you scratch my back, I’ll scratch yours.” Yeah yeah, technically, it’s called “mutual judicial assistance.” But yeah, back scratching. U.S. courts are far more willing to cooperate, in large measure because they have a statutory basis (28 U.S.C. § 1782), but foreigners aren’t as forthcoming with help.