Bayeux Tapestry – Scene 57: the death of King Harold. Myrabella via Wikimedia Commons.

Back when dinosaurs roamed the earth, I took Civil Procedure from a couple of highly talented professors.  One was among my favorite teachers of all time— he taught the concept of joinder with a shopping bag full of Beanie Babies™ and, for some baffling reason, a Jessie the Cowgirl™ doll from Toy Story 2.*  On the surface, that’s a very weird thing for a licensed attorney to put into a blog post, but the fact is, generations of JD’s from the University of Missouri-Kansas City know joinder cold because of Jeffrey Berman’s frequent flier card at Toys ‘R’ Us.  Third-party claims, cross-claims, counterclaims? Yeah, we got this.

That said, due to the compressed nature of that semester, and the reality that you just can’t learn everything you need to know as a 1L, we never really touched on certain basic concepts.  Like “how do you serve process?” or “why is the judge such a grumpy gus and how do I assuage his ire?” or “is it too late to get my LSAT fee back?”  Notably, we never really delved into the nature of subpoenas– neither the theoretical nor the practical.  They were mentioned in the broader discussion of discovery, where we had to understand arcane Latin phrases like ad testificandum and duces tecum.  But it was naturally assumed that if you wanted somebody to cough up evidence, all you have to do is send ’em one of these things.

Subpoenas serve a two-fold purpose.

It wasn’t until I was well into practice that I really gave the dual nature of subpoenas much thought, as I was talking to a client one day about serving a subpoena abroad.**  It turns out that, while her third-party in Country X was perfectly willing to produce (they detested my client’s party-opponent), they were deathly afraid of a lawsuit if they produced without a subpoena.  They wouldn’t do it without some coercive document that would force them to do what they wanted to do anyway.

It dawned on me that, sometimes, a subpoena is an offensive weapon– a sword– used to force someone to bend to your will.  At other times, it’s defensive, acting as a shield to protect an ally who has your back.  This is certainly not a novel idea– it’s a straightforward concept that should simply be understood.  I’d just never given it any thought before that conversation.

So how does the shield benefit somebody overseas?

Truth is, it really doesn’t… or rather, it can’t.  Keep in mind that a U.S. subpoena has no coercive effect abroad, unless it’s directed at a U.S. national– and even then, don’t be so sure it can be done.  If it’s merely a matter of effecting service to satisfy the court, and the third party is willing to produce, the judge may approve mere service.  Here’s the progression in the federal rules, with a problematic quirk:
  • Rule 45(b)(3) governs service of a subpoena abroad.
  • It incorporates 28 U.S.C. § 1783.
  • § 1783 impliedly incorporates Rule 4(f)– service “shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country.”

Okay, that might happen, or it might not (far too many variables to address in this space).  But note the fly in the ointment:  Rule 45 and Section 1783 apply specifically to “a United States national or resident who is in a foreign country”.  Neither of them delves into non-U.S. persons.

In short, there is no direct prescription for serving a subpoena on either third-party.  All you can really do is ask them.  Otherwise, you’re looking at filing a Hague Evidence Request or an old-fashioned Letter Rogatory— it would still take action by a foreign court to compel the production.

That compulsion has to be there in order for either the sword or the shield to do any good.

* COMES NOW plaintiff, Buzz Lightyear…

** Hint: theoretically, it’s possible to serve it, but that doesn’t make it effective.