The Royal Courts of Justice, London.  Cristian Bortes, via Wikimedia Commons.

Set aside any opinions on the merits of the Steele Dossier story– this is not a political commentary.  It is is a high profile illustration of something I’ve been preaching for a long time.  And it just so happens that I’m in England at the moment, to present on Hague issues for UMKC Law’s Oxford CLE program* and get a jump on my next reporting year.

This seems the perfect time to preach again.  The sermon:

Production of (third-party) evidence located outside the U.S. cannot be compelled with a U.S. subpoena.

Forget it, because it ain’t gonna happen.  I elaborate in my post “Hague Evidence Requests: 3 Cardinal Rules“… you cannot just serve a subpoena abroad and have it matter.  At all.   A subpoena loses its coercive effect when it leaves the jurisdiction, and only regains that coercive effect under a statute or domestication in the destination jurisdiction.

But every once in a while, somebody becomes a cheeky monkey and tries to argue that common law is common law, and another common law court will domesticate a common law subpoena, no problem.

Ahem… no.

Oh, sure, Florida might willingly domesticate a Missouri subpoena.  Missouri would do likewise with a Vermont subpoena.  Why?  Full Faith & Credit, that’s why.  But that doctrine does not extend north of the border or across the North Atlantic to this blessed plot, this Earth, this realm, this… ENGLAND.  A Letter of Request is the proper instrument to compel production:

  • In Canada, a classic Letter Rogatory, filed directly with a Canadian court of appropriate jurisdiction.
  • In England, a Hague Evidence Request.

Functionally, they’re the same thing.  They’re just conveyed differently.  Both paths eliminate the need for the State Department to handle them (and charge $2,275 for the favor).  But even though both countries are common law (I mean, because England), they still require adherence to those Cardinal Rules I described in 2016:

  1. Be surgically specific in identifying the evidence, whether testimonial or documentary.  (A very narrow WHAT.)
  2. Demonstrate a high degree of relevance, and tell the foreign authority how that evidence will be used at trial.  (A very narrow WHY.)
  3. For crying out loud, hire foreign counsel to help you draft the thing– and then argue about it if the foreign target (or a party-opponent) opposes its execution.

Now we have an appellate opinion to provide a definitive foundation for the first two of those rules (I rather think the third is self-evident).

In Buzzfeed Inc and another (Appellants) v Aleksej Gubarev and others (First Respondents), Christopher Steele (Second Respondent), [2018] EWHC 1201 (QB), the English High Court endorsed a pretty thorough ruling by Senior Master Barbara Fontaine** (hat tip to Ted Folkman for posting the Fontaine decision a few weeks ago, and the affirmation more recently).  The High Court is really a first-instance venue, but just as Article III judges hear appeals of Magistrate rulings, the EWHC hears appeals from Masters’ decisions.

Master Fontaine’s position, in a nutshell: we’re going to help our American cousins as much as we can, but… not if they’re allowing the parties to go fishing, and not if they haven’t shown me that the evidence sought is relevant to the proceedings.  (She even noted that the U.S. court had deferred to her judgment as to the relevance analysis!)

Stefan Bellini, via Wiki.

Essentially, Justice Jay’s opinion lays out the rationale that, because American courts don’t delve as deeply into relevance when requesting particular evidence, Hague requests can go pretty far afield from what’s actually admissible or appropriate.  As such, the Master has to sever certain parts of it.  In the end, the High Court thought Master Fontaine appropriately did so in the Buzzfeed case.

In reality, this isn’t far off the mark– American-style discovery entails a “produce now, and we’ll argue relevance at trial” mentality– go fishing, it’s okay!— and that is badly frowned upon even in other common law jurisdictions.  Truly, our Rules of Evidence exist primarily so that judges can exclude fish from being waved around the jury box.  But the English system hasn’t the need for such limitations– civil jury trials are exceedingly rare (no 7th Amendment), and their judges are pretty capable of determining what’s what.

Justice Jay laid out a pretty good framework for Hague Evidence Requests (to summarize):

  1. We (English courts) will do all we can to accommodate them (comity, after all), but although it isn’t appropriate for English judges to assess relevance under U.S. law, we have to have some indication that the U.S. judge has undertaken the assessment in the drafting of the Request.  If they don’t, we must, and that may necessitate a bit of cutting here & there.***  In short, give us a very narrow WHY.
  2. The scope of the request has to be limited, not just for relevance, but for the avoidance of oppression.  That is, don’t make it too vast, and don’t make it too vague.  Put your fishin’ rod away, or we’ll have to cut a bit here & there.  Give us a very narrow WHAT.

Conclusion:  The Special Master was right.  The U.S. court didn’t assess relevance, so Fontaine had to, determining that some of the evidence sought didn’t connect the dots.  Moreover, the scope of the requested questioning went too far.  For both reasons, she had to sever certain parts of the request.

Ah, guidance.  A wonderful thing.

St. Edmund Hall, Oxford. Founded in 1226, the oldest college at Oxford University, and the site of our CLE conference.

* The UMKC program takes place annually in the summer.  Comparable programs are also available in the fall, alternating between Rome (odd years) and Paris (even).

** Master Fontaine’s position is the oldest judicial post in England that remains in use (I got that from Wikipedia).  The office of Queen’s Remembrancer was created in 1154 by Henry II (okay, so it was the King’s Remembrancer– pipe down– and became so again as of 2022).  More pertinent to my practice is that she is the judge responsible for requests submitted pursuant to both the Hague Service and Evidence Conventions.

*** In the U.S., we say the judge would redline parts of the list.  Overseas, they say the judge would blue pencil parts of the list.  Either way, it’s sort of a line-item veto, but their way doesn’t conjure unhappy memories from junior high school.