Yet another “FAQ” post, if you will…
“Hey, Aaron, the complaint is under seal, and the judge has ordered me to instruct the process server that he’s under the same obligation as I am.”
I respond: Well, that’s all fine and good, if you’re using private agent service in a country that would enforce the seal. But Article 5 service via a Central Authority? In a word, fugghetaboutit. Once this thing goes overseas, all bets are off.
See, the seal has absolutely no coercive effect on a foreign authority except under the doctrine of comity, and it really has no practical effect on a private agent overseas. At least, not one who isn’t somehow accountable to the court, and isn’t in a country that would enforce the seal.
With agents, ultimately, it comes down to trust, and that’s not the end of the world. If the agent understands the gravity of the situation, and the real, palpable concerns that prompt the seal in the first place, you’re going to be okay.*
But when you involve foreign government & judicial authorities, all we have to go on is an argument that (1) U.S. courts would respect a judicial seal ordered by a foreign court, and (2) our courts have done so before, so (3) would you keep things under wraps, Monsieur le Juge, s’il vous plaît? Pretty please?
Foreign officials are under no obligation within the Hague Service Convention to keep things confidential. And in many places, sadly, Hague requests are handled by low-level bureaucrats at some point in the chain of custody** and they have zero motivation to keep things under wraps, especially in response to a U.S. judge’s edicts. What effect that has on the procedural posture of the case, I cannot say, but the court must understand that its authority to dictate terms ends at the shoreline.
* The agents I work with get it. They understand the seal and they understand that, although they may not suffer any legal penalties in their home jurisdiction, they’ll never get another job from me. But if I don’t have a trusted agent wherever you need to serve, I won’t even make assurances, much less guarantees. Simply put, I can’t guarantee anything once the documents go abroad.
** For lack of a better word.