At least once a week, my office fields the question “what else do I need to serve under Hague?”– or some variation on that theme.
It’s a highly pertinent question because most litigators aren’t familiar with the Hague Service Convention and its various requirements; if they were, I wouldn’t have such a beautiful niche practice, so I truly cannot complain. The question has a simple answer, but one that leads to complexities driven by geography. The answer:
Nothing. Venue rules determine WHAT documents have to be served. The Hague Service Convention governs HOW.
That’s not so critical if your defendant is Irish or Australian, because we can get that guy served without translating the documents, but the cost factor can really be a thing elsewhere. A while back, I posted that, yes, foreign authorities actually read translated documents— and if the translation is substandard (or just flat-out horrible), Hague Service Requests are rejected, sometimes with a quickness, and occasionally after nearly a year. But it’s been a longer while since I offered thoughts about minimizing the cost of translation while maintaining requisite quality.
Identifying what’s included is simple, really: if you have to serve a particular document on defendants in Paris (Texas) or Berlin (North Dakota… not far from Fargo), you likewise have to serve that document on defendants in Paris (France) or Berlin (Germany).* And if you have to serve in France or Germany (or dozens of other countries), you have to translate the document into the local language– every word, every page.
Unless you’re serving in an anglophone jurisdiction, the defendant’s competence in English is utterly irrelevant. Among the exceptions to that: Finland, Israel, and the Netherlands. Even then, the idea is a bit on the bubble. That’s it.
Or is it?
Well, yes, it really is the end of the “rule”, if you will. But dig deeper: if you have to serve a document a block from the courthouse that issued the summons, you have to serve that document on a defendant in an overseas jurisdiction.
HAVE. TO. SERVE.
What you have to serve. Shall serve. Must serve. Insert your own synonym that indicates a mandate.
In most federal courts, service of the following documents isn’t required:
- Civil cover sheet
- ADR Information Pamphlet (often totaling several dozen pages)
- Judges’ Individual Rules
- Standing Orders
- Emergency Orders (particularly a burden during Covid-19)
- Electronic Filing Notice
- Other ancillary documents
They simply aren’t required nationwide. Look to Fed. R. Civ. P. 4, which is crystal clear: “A summons must be served with a copy of the complaint.” That’s it. Summons, Complaint, end of list.**
My advice to my clients (all lawyers and law firms) is this:
If there’s no rule that says “thou shalt serve XYZ,” omit XYZ from the service packet.
Why? Because XYZ unnecessarily runs up the cost of translation. And of printing. And of shipping.
Don’t include XYZ just because you ordinarily serve it as a matter of course. Don’t include it because you it’s considered “best practice” by the law firm consultant community. Just stick to what is required.
End of rant. Now go tell your clients you saved them a bunch of money.
* Lex fori governs what must be served. The Hague Service Convention and the law of the destination jurisdiction govern how it’s served.
** Three important things to note here:
- Exhibits are part of the Complaint. This can be particularly costly in IP litigation, where I’ve seen cases with a dozen patents that drive translation costs into the six-figure range.
- Look beyond just the FRCP– local rules may actually require some of those ancillary documents, and that varies wildly by district.
- State rules are all over the map, so make sure there’s a requirement before incurring the expense!