Foreign Evidence Compulsion

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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).  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.

Scratch My Back (1920) . Via Wikimedia Commons.

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.

Timmy the Biglaw Associate realizes that he needs to discover documents from a company in Italy.  Timmy knows from CivPro class that discovery requires a subpoena, so he dutifully sits down and writes one, to command the company to produce any and all documents related to XYZ, et c.  He seals it up in a FedEx envelope, sends it off to Milan, and a week later, the company’s avvocato tells them to fugghetaboutit— it has no coercive effect in Italy.

Timmy went to an Ivy League law school, graduated at the top of his class, and was heavily recruited by the biggest white shoe firms on the east coast.  But they never told Timmy about extraterritorial effect in law school.  It simply never came up.  What Timmy didn’t know is that a Hague Evidence Request is the proper instrument to compel the production of evidence in Italy and a few dozen other countries.  Some very important rules apply to its use, and its execution relies on the kindness of a foreign judge who is a bit like that guy in the sleigh who gets his own tracking system at NORAD.

Some salty old veteran in the managing attorney’s office tells him, “no, Timmy, the Hague Evidence Convention applies here– try again,” so he copies and pastes the subpoena language into the form provided by the Hague Conference, and shoots it off to Rome.  It eventually lands on the desk of an Italian judge.

Sadly, a Hague Evidence Request is not what Timmy thinks it is.

It’s not a subpoena.  It’s a Letter to Santa Claus.

More to the point, it’s a Letter to Santa Claus in which you must not only justify the pony, but also describe its height, color, and breed, then tell Santa exactly what its responsibilities will be (carnival rides, herding cattle, pulling a beer wagon).  You can’t just tell Santa you want “a” pony.  You have to define what you mean, and then articulate why.

Think of the Italian judge like Santa Claus.  Timmy just demanded a whole bunch of ponies.  And you don’t just demand something from the man in the sleigh.  Even if you’re Veruca Salt and your daddy is a pushover.  You can’t just say you want the whole world, Veruca.

A little illustration…

The year I turned ten, I figured out the guy in the sleigh.  Around Thanksgiving, I told Mom & Dad that “I KNOW YOU’VE BEEN LYING TO ME”, and they reacted by threatening my life if I broke my kid sister’s six year-old heart and told her the ugly truth.  I almost spilled the beans a couple of times, prompting threatening glares from Mom and a simple tap of the belt buckle from the Old Man.  I had to think fast, or Christmas was really going to suck.

Dad had just gotten promoted (ah, life in an Army family), so we could finally afford some of the cooler stuff in the Sears Wishbook, and I was assured that the naughty/nice criteria remained in effect as to my own haul on Christmas morning.  I volunteered to help… I’d pitch in and make it special for Kid Sister.  On Christmas Eve, I stayed up until 3am with the Old Man to assemble the Barbie Dream House.  This evil monstrosity right here–>  

It was an epic nightmare.  A thousand little pieces and tabs and slots and a schematic to rival the Space Shuttle… just a nightmare.  But as much as she appreciated it and played with it for hours and hours, Sis confided in me years later that it wasn’t the one she wanted.  She wanted a far simpler version– the town house from the 1960s, rather than the massive Malibu Beach House that all the little girls wanted in 1980, give or take a couple of years.  We picked up a ’60s version at a garage sale five months later when the family next door was transferred to Germany.

Two decades later, I was the Old Man myself, and I expected another 3am assembly project.  The updated version of Barbie’s town house popped out of the box, folded open, snapped into place, et voila.  No assembly, no screws, no tabs… it was as if someone had clued the Mattel people into the fact that dads despised them.

But to compare, my sister hadn’t been specific.*  My stepdaughter was pinpoint accurate about her intent– for months– and she took me by the hand every time we were within a mile of Toys ‘R’ Us and said…

<– “THAT ONE, RIGHT THERE.”

Surgically specific.  I expected her to make me write down the numbers from the UPC label.  On Christmas morning, Santa Claus made that little girl sing with delight (and my heart sang right along with her).

The lesson for litigators here… don’t be like Timmy, or my kid sister.  Don’t just say you want “a pony” and think that by noon on Christmas Day, you’ll be driving a herd up to Abilene.  Don’t just say “I want a G.I. Joe.”  Santa Claus doesn’t know that you want the G.I. Joe with the kung fu grip.  He goes to the toy department at K-Mart* and is so overwhelmed with ALL the G.I. Joe stuff that he just gets you a nice, um… football.

In a Hague Evidence request, you have to be more like my stepdaughter.  Or Ralphie Parker– after he left Higbee’s (you know Ralphie, and if you don’t, you’ve obviously been living under a rock for thirty years).  Ralphie’s Old Man knew with certainty that he wanted “an official Red Ryder, carbine action, two-hundred shot range model air rifle!”

Why?  Because Ralphie was so utterly specific, once he overcame his awe of being in the presence of the big man himself.  Of course, he fought really hard to not overdo it.  He had to be subtle in communicating his specificity (Miss Shields’ theme assignment probably had no discernible effect on Santa Claus’ understanding of the matter).  But he very specifically stated what he sought, and his request was duly executed by the appropriate judicial authority (read: Dad) of the jurisdiction in which the thing was sought (3159 W. 11th Street, Cleveland, OH 44109– in real life).

The point is this: a subpoena demands that someone give you what you seek; if they don’t give it to you, consequences follow.  You don’t demand anything in a Hague Evidence Request; if you do, you’re headed for a very pink nightmare.

* The lesson was passed down to the next generation.  My nephews now send me URLs to specific products on Amazon.  Usually Nerf guns.

** I worked at K-Mart for a couple of seasons while I was in college.  It really was a class organization, although I think they treated me better because I was in college and not high school.  I worked the toy department for exactly one shift during the Christmas season.  Never again.  There was just too much… everything.  No wonder Santa wants specifics.

OH YEAH.  ONLY 84 DAYS UNTIL CHRISTMAS, KIDS.

Pixel.la via Wikimedia Commons

The Supreme Court issued a decision in May that seems, at least on its face, to be absolutely groundbreaking in transnational litigation.  And a few otherwise cogent blogs have posited recently that it will mean great things in the discovery field, now that subpoenas can be served by mail.  Both of those statements are quite incorrect.  The decision will have minimal effect anywhere but perhaps Houston and Kansas City, and it will have zero effect on discovery, electronic or otherwise.  Zero.

For starters, the Water Splash opinion is anything but groundbreaking.  It merely resolved a circuit split that didn’t amount to a whole lot.  The 5th & 8th Circuits, along with a number of federal districts, had previously held mail service under the Hague Service Convention to be invalid.  The 2d and the 9th, where substantially more lawsuits target foreign defendants, took the opposite (correct) view.  My take on the whole thing: big deal.  Mail service is usually a bad idea regardless of its legal validity.

More flawed, though, is the idea that the Hague Service Convention, in light of Water Splash, allows for service of subpoenas by mail.  It doesn’t.  It never did.  It never will.  At least not with coercive effect.

Because subpoenas aren’t considered judicial or extrajudicial documents covered by the Service Convention. *

Subpoenas are a construct of the common law, and even other common law countries don’t use them nearly as often as we Yanks do.  In civil law countries, they’re unheard of, because evidence is not produced at a lawyer’s demand.  It’s produced because the judge wants the evidence and issues an order saying so.  I say this repeatedly:  you can’t simply serve a subpoena abroad.  You can’t.  Period.  There is no variance on this.

And if you can’t serve it, the Service Convention isn’t what you look to in determining how to make the witness or custodian cough up the information you seek.  The Hague Evidence Convention provides the avenue, and it does a rather poor job of it by U.S. standards.**

To compel production for a U.S. action in a fellow Hague country a Hague Letter of Request is necessary.  And a word of caution: STOP CALLING IT DISCOVERY.  It’s evidence taking–or more accurately, evidence compulsion in most cases.  Call it discovery, and your request will be rejected by the foreign judge without so much as a thank you.

You can get to the evidence.  It just requires significantly more effort than dropping a subpoena in the mail.

Water Splash’s effect on the undertaking:  Nada.  Zip.  Zilch.

* A clarification is in order– and I thank Ted Folkman of Letters Blogatory for pointing it out:  yes, a subpoena is unquestionably a judicial document, and it can theoretically be served under the Hague Service Convention.  But not with coercive effect— any more than a New York subpoena can be effectively served in Missouri without the assistance of Missouri courts.  In many places around the globe, a subpoena is viewed as a tool of all-too-zealous lawyers who (in the view of our common law brethren) overreach, or who (in the view of our civil law cousins) usurp the authority of foreign courts by barking demands at their citizenry.

** That is not to say it’s a bad treaty.  It just doesn’t do much for U.S. litigators in the way that we might hope.  In reality, it only knocks down a couple of procedural barriers that hamper the old fashioned Letter Rogatory procedure.  At its core, everything is still up to the foreign judge, in a manner governed by foreign law.  This makes U.S. judges quite happy, of course (<– sarcasm).  Article 23 constitutes a big, ugly middle finger to American lawyers who need documents located in a file cabinet somewhere in Europe.

1o5tclYou’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product in Europe through a British distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.

[The author intones, as if in a Gregorian chant…]

For you, glorious and gentle counselor, have preached the gospel of truth.  You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.

[You’re getting a bit of a big head, don’t you think?]

You implore your fellow pilgrims to create an epistle of truth for the ages!

Alrighty, then.  You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the British company at its office in Berkshire.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the mission field you go.  You plunk down $1,000 to have Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the the Royals Courts in London, telling you that “oh, sorry, dear boy.  Quite bad form.  You’ve blundered the whole thing.” [That’s nasty in English legal circles.  And it’s funnier if you read it in Hugh Grant’s voice.  It’s nastier if you read in Ralph Fiennes’ voice… as Voldemort.]

Where did the wheels fall off?

  • Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
  • Joe Bob didn’t know that subpoenas aren’t covered by the Hague Service Convention in a way that confers any coercive effect on them (they’re covered by the Hague Evidence Convention).
  • Even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Plus that, you can’t simply “serve” a subpoena.  It doesn’t work that way if you want it to actually carry force.  You have to send a Hague Evidence Request through the appropriate channels, and ask an English court to compel production.
  • And what’s more, the British have indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  There are certain exceptions to their Article 23 declaration; your request has to be written in just the right way.

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and even the Brits hate that.  So do the French, the Chinese, the Germans, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.

32cf689669c85dec780ce383cb28ecfd0bef8f41Just hope the custodian of documents isn’t this guy–>

No, really, this guy is a twit.  And apparently, he now fancies himself a rock star.  Sheesh.

[I enjoyed the original British version of The Office far more than the successful American version.  Both make you want to cringe, but David Brent was simply funnier than Michael Scott.]

Rishichhibber, via Wikimedia Commons.
Rishichhibber, via Wikimedia Commons.

Lawyers love analogies, and a good one tickled my brain as I listened to a bright young homebuilder speak during a panel discussion on entrepreneurship hosted recently by the Kansas City Business Journal.  She talked about how vital it is to have the right subcontractors in place in order to achieve the best product and cost basis.  The right culture, the right base of knowledge… in order to harness innovation.

I’m always squawking about how lawyers should outsource their international work—and why wouldn’t I?  I’m what’s known in the industry as an LPO… a legal process outsourcer.    My whole practice exists as a way for litigators to keep certain work off their desk, saving their clients and their firms a significant amount of money, time, and frustration.

But the outsourcing analogy strikes me as not quite accurate.  It seems that outsourcing is something you do merely to cut costs.  The better analogy: subcontracting, because it doesn’t only cut costs– it increases quality.

Let’s say you’re a homebuilder, a general contractor, and you’re known throughout your community for great design, solid construction, and a highly personalized system that involves new homeowners at every stage of the process.  You stand by your work, and because you make a concerted effort to know the people handing you hundreds of thousands of dollars, you sell lots of houses.

A family comes to you, wanting a four-bedroom house with all the bells & whistles that state-of-the-art technology can provide.  The contracts are signed and you begin amassing the money and materials necessary to build this family’s dream home.

But that’s not all you need to amass.  You aren’t a landscaper.  You aren’t a plumber, or an electrician, or a hardwood floor guy.

You’re a GC, so how do you get it all done?  You subcontract the specialty work.

Why?  Because it’s efficient, and because the quality of your work product is significantly higher.  Each discrete component of the construction process is handled by somebody with deep, specialized knowledge of his own discipline.

Lawyers provide a service not unlike that of a homebuilder.  Hundreds of thousands of dollars are on the line, professional expertise is vital, and trust is the foundation of every transaction.

Yet lawyers have an incredibly hard time subcontracting the work that they don’t specialize in—like serving process or compelling production of evidence in another country.  And that is to their own detriment.

One of my law school professors always loved to say “hey, it’s tough out there” any time somebody complained about one obscure doctrine or another.  And he was absolutely right.  It’s tough out there for litigators—and there are minefields in procedural law that can be easily avoided when lawyers are willing to consult with someone who has deeper knowledge.

Litigators who are tough themselves know that they can’t do it all, just like that homebuilder knows she can’t do the tile and plumbing and wiring work all by herself.  She assembles a team, and that makes all the difference.

Spanish_gavel
Tamorlan, via WIkimedia Commons

Few things in transnational litigation are as vexing or as unnecessarily frightful as the Letter Rogatory.  Honestly, they’re not that complicated—they just have a few necessary elements that many practitioners miss, and because they’re signed by the judge, we worry.  A lot.  Perhaps this will shed some light…

What is it?

Black’s Law Dictionary (7th Ed.) defines a “letter of request” (same animal) as “a document issued by one court to a foreign court, requesting that the foreign court (1) take evidence from a specific person within the foreign jurisdiction or serve process on an individual or corporation within the foreign jurisdiction and (2) return the testimony or proof of service for use in a pending case.”

Put another way, it’s just a note from one judge to another, asking for a little help:

Dear Unknown Judge in Country XYZ:

 I’m a judge, too, y’see, and I’ve got this case in my court that can’t proceed unless I get some help.  Here’s what’s going on…  (details)

 Now that I’ve spelled out the gist of the case, I’d really appreciate it if you could see your way clear to sending out one of your guys to (serve process/compel this witness to submit to examination/compel production of evidence…).  Pretty please.  You’re a good fellow and, if you ever have occasion to send me one of these requests, you can bet I’ll make it happen for you.  And if you’re ever in Cleveland, I’ll buy you a beer.

Oh yeah, the party that’s asking me to ask you for the favor?  Yeah, he’s gonna cover all of your expenses, so go nuts, Scooter.    Much obliged.

 Your new best pal,

U.S. judge

I’m not exaggerating.  That’s really the tenor of the thing, albeit illustrated like a note from a 12 year-old to his canoeing buddy from summer camp.  It’s just a judge here asking a judge there for a hand.  Nothing more, nothing less.  The biggest drawback: there is not a single legal doctrine that compels the foreign* judge to execute the letter (grant the favor) except the doctrine of comity.  Nothing.

As such, if you get a grumpy judge on the other end (no, we never have those), you could have a problem.  So be gentle.  And just a tad obsequious.

Judge Haller has zero tolerance for your crap.
No, we never have grumpy judges here in ‘Murica.

What’s it used for?

A couple of big issues:  (1) evidence taking, and (2) service of process in countries that aren’t members of the Hague Service Convention.

What are the hurdles?

Well, for starters, the manner in which it’s conveyed.  Letters Rogatory are usually sent through diplomatic channels, which means it takes a while just to arrive in the foreign country, and it also means you have to pony up $2,275 to the State Department for the favor of sending it abroad in the diplomatic pouch.

Some exceptions to the “send it through State” rule:

  • The Hague Service Convention renders Letters Rogatory completely unnecessary, so don’t sweat using one for Service of Process in much of the world.
  • The Hague Evidence Convention removes the State Department from the equation, and allows submission directly to a Central Authority.  It’s called a Hague Letter of Request, but substantively, it’s the same thing.
  • The InterAmerican Convention on Letters Rogatory and Additional Protocol reduce the format to some pre-printed forms and allow for submission directly to a Central Authority, whether for service or evidence compulsion.
  • Many Canadian courts will accept them directly for evidence requests.  That is, they’re still Letters Rogatory, but without the hassle and cost of going through State.  (Note that Canada is not party to the Evidence Convention.)

Another big hurdle is making the forum court judge understand why this this is necessary in the first place.  Keep in mind, this is the fellow whose signature is going on the thing.  I know some very fine judges, and several of them have told me, quite literally, that they don’t know a thing about handling cross-border issues.  And who can blame them?  After all, we expect these folks to know everything about everything, but they’re human.  And it’s frequently up to us lawyers to advise them on the proper protocol.  (For more on this challenge, see “Motions for Issuance of Letters Rogatory… a little like asking Mom to sign a permission slip.”)

The biggest hurdle of all is finding the right balance between (1) getting what you want and (2) getting what you need.  That, like everything else we do, requires solid drafting.

For evidentiary requests, the Three Cardinal Rules of Hague Evidence Requests apply.  Again, whether the Convention applies or not, the instrument of request is the same critter.  For Service of Process, the Letter is a tad simpler to write; see the sample in the Federal Judicial Center’s guide for judges on Letters Rogatory.

Shameless plug:  if this thing is too daunting, for crying out loud, call in some help (hint, hint).  It’s always going to be better for your client if you hire a sherpa to help you carry your gear up the mountain instead of trying to go it alone.

* Foreign.  Term of art, meaning outside this jurisdiction.  Ontario is foreign to New York.  Missouri is foreign to New York, for that matter, just as France is foreign to Texas and Kansas is foreign to, well, everywhere.  (Sorry, Jayhawkers.  Y’all are just goofy sometimes with that rock chalk chant thingy.)  Point is, Letters Rogatory can be transmitted between courts within the United States– they aren’t just a transnational concept.

Hockey Fan
Image by Voice of America, so it's Public Domain. Irony drips from this photo credit, dunnit?

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a distributor in Manitoba, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada  pack o’ Timbits.*  The damning piece of documentary evidence that will vindicate your client’s rights and body-check the defense into the glass.

The announcer in your head:  Plaintiff’s Counsel has the puck…  he shoots, he scores!

[Your heroics rouse up the crowd, and they politely chant your name!]

The announcer, again:  Take off, eh? You’re dreaming again, thinking you’re in the Stanley Cup Finals, but you’re really in a Bob & Doug sketch.

Okay, then.  In the real world, you tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the Canadian company at its office in Winnipeg.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the rink you go.  You plunk down $1,000 to have Joe Bob the Process Server pull the paperwork together, and then you wait.

Three months later, you get a polite note from the Ministry of the Ontario Attorney General.  “Well, gee, eh?  We’re really soory about this, but no.  You can’t do that.  Soory.”

Sorry? That should read "soory".
Sorry? That should read “soory”.  Manners are nice.

So, where did the wheels fall off?

  • For starters, you let a process server—who does not have a law license—tell you how to handle an intricate transnational legal procedure. He doesn’t know what he’s talking aboot, so yes, you should give your professional liability carrier a heads-up.
  • What Joe Bob didn’t know is that subpoenas aren’t covered by the Hague Service Convention— at least, not with any coercive effect.*  They are, however, covered by the Hague Evidence Convention.  Sort of.
  • Even if they were under the Service Convention, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • But Canada isn’t a party to the Evidence Convention anyway, so the idea of a Central Authority is out of the question.
  • Regardless, you can’t just serve a subpoena.  It doesn’t work that way.  You have to petition the forum court to issue a Letter Rogatory, and then send it through the appropriate channels to ask a Canadian court in the right province to compel production.
  • Oh, and you didn’t say please.  The Canadians are some of the nicest, most polite people on the planet.  But if you don’t reciprocate (or preemptively offer) that politeness, you’re toast.
  • I kid.  Of course, you said please.  You just didn’t say it to the right person in the right way.  A big pack o’ Timbits* would help.

So, let’s face off again, and try the right approach to getting the puck in the net.

Here are the THREE CARDINAL RULES for Hague Evidence Requests—and they apply equally to Letters Rogatory:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  They are the hallmark of good old ‘Murican discovery, and the rest of the world hates that.  The Germans hate that.  So do the French, the Chinese, the Brits, aaaaaand… the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel. At the front end, they’ll help us/you draft the request and will appear for you in the foreign court.  If you have the right one, you won’t even have to pay the State Department $2,275 to hand the thing off to the Canadians!  It will cost you a few hours of the Canadian lawyer’s time and, probably a pack o’ Timbits.**

Give me a shout if any of this doesn’t make sense.

* Look at it this way: a New York subpoena carries no weight in Missouri until a Missouri court domesticates it.  Just serving it doesn’t magically confer coercive effect.  Likewise, a U.S. subpoena (state or federal) had to involve Canadian judicial authorities to have any teeth.

** If you don’t know Timbits, you ain’t lived, friend.  They’re Canadian crack.

* If you don’t know Timbits, you ain’t lived, friend.
Thanks to Warren Buffett, we might just get them here someday.  The inversion is costing us a whole bunch of tax revenue, but, dude… Timbits.

 

Cardinal_Richelieu_(Champaigne)
This guy ran France for about twenty years. All of his rules were Cardinal Rules.

You can’t just serve a subpoena in France.

You can’t just serve a subpoena in China.

You can’t just serve a subpoena in Germany or Japan or India or Mexico or Switzerland or England or Austria…

Get the point?

Ye cain’t do it, Boudreaux.  You can’t just “serve” a subpoena in a foreign country.  For that matter, you can’t just serve a subpoena in another state.  A subpoena is a demand by a lawyer, backed up by the contempt power of the court.  But just as that contempt power stops at the jurisdictional boundary (the state line), the subpoena loses its coercive effect when it crosses that boundary.  It only regains coercive effect on the other side of the line either through a domestication action (in the other state’s courts) or under the authority of a statute (and even the statutory mechanism is not necessarily automatic).

At the international level, it’s even more tricky, because there is no statute.  And the procedural analog to domestication is incredibly complex.  There is a treaty involved, but it really only greases the domestication skids.

The Hague Evidence Convention

It isn’t unreasonable to think that a subpoena can be conveyed abroad in the same way we serve summonses and complaints.  After all, the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (very long name for the Hague Service Convention) is a great mechanism for getting the job done.

Subpoena… judicial or extrajudicial document.  Seems pretty straightforward, right?

Wrong.  Subpoenas are not “Judicial (or) Extrajudicial Documents” for the purposes of the Service Convention.  Instead, they fall within the scope of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (long name for the Hague Evidence Convention).

And that is where the wheels fall off the wagon, so to speak.  Instead of serving the thing, you have to seek its (for lack of a better word) domestication.  And that comes through a Hague Evidence Request (in countries not party to the Convention, an old fashioned Letter Rogatory is used).

That request functions just like a Letter Rogatory, in that it is a communication from one judge to another.  The only real difference is that it doesn’t have to be conveyed through diplomatic channels to the court in the foreign country.  But neither of these instruments can look like a subpoena.  They can’t contain subpoena language, they can’t reflect the demanding tone of a subpoena, and they can’t look like they belong on a rack at Bass Pro Shops.*  Careful drafting is critical, or the whole exercise is a massive waste of time and resources.

Dales Fuzzy Photos, via Wikimedia Commons
Dales Fuzzy Photos, via Wikimedia Commons

THREE CARDINAL RULES for Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary. Seriously.  They are the hallmark of good old ‘Murican discovery, and foreign courts hate that.  The French, the Germans, the Chinese, the Brits, the Canadians (yes, the Canadians hate our discovery practices, of all people, but I digress, as they aren’t in the Evidence Convention**).
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel in the foreign jurisdiction.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court that will (or won’t) execute the request.

This is only the beginning of the process, but if you don’t start here, you’re sunk.

Above all, you must be surgically specific in identifying what you seek (see Rule 1).  Instead of “provide copies of all emails between your staff members from July, 1983 to June, 1987 pertaining to the promotion of Strange Brew“, narrow it down to “provide a hard copy of the email exchange between Bob and Doug on the morning of August 7, 1983 with subject heading ‘This movie is terrible.’”

Don’t say “the text included therein is expected to identify all of the persons involved in creating a horrible film, and we can’t identify them any other way.”  Say “we anticipate that both Bob and Doug will testify under oath that they created a wonderful comedy romp, and this evidence will directly refute such testimony.”

Yes, it needs to be that concise.

* Bass Pro Shops.  You know.  The fishing rod place?  [Peggy is reminding me that “if you have to explain it, it isn’t funny.”]

** Canada is not party to the Evidence Convention, but the Letter Rogatory process may not have to involve the State Department when evidence is located north of the border.

One would think, given the theme of the art in this post, that a picture of a certain baseball team from a certain city on the eastern edge of my state would be appropriate here.  Not gonna happen.  Instead, I give you the fellows from Missouri’s west side…

unknown
We saw it coming, SI.

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a German distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada  streuselkuchen.  The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to the light of truth and human understanding.

[The author intones, as if in a Gregorian chant…]

For you, glorious and gentle counselor, have preached the gospel of truth.  You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.

[You’re getting a bit of a big head, don’t you think?]

You implore your fellow pilgrims to create an epistle of truth for the ages!

Alrighty, then.  You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the German company at its office in Munich.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the mission field you go.  You plunk down $1,000 to have the subpoena translated into German, and send another $1,000 to Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the the Justice Ministry in Berlin, telling you that “NEIN, MEIN HERR/MEINE FRAU.  DAS IST UNMÖGLICH.”  No, sir/madam.  That is impossible.

Where did the wheels fall off?

  • Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
  • What Joe Bob didn’t know is that the Hague Service Convention doesn’t magically confer coercive effect on a subpoena (they’re covered by the Hague Evidence Convention), and even if it did, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Second, even if the Service Convention were right, and even if you signed the thing instead of Bob, the Präsidentin des Oberlandesgerichts München (the State Court President in Munich) is the Central Authority in Bavaria.  Joe Bob erroneously sent the thing to Berlin.
  •  Third, you can’t just “serve” a subpoena.  It doesn’t work that way.  If you hold out any hope that the German third-party will comply, you have to send a Hague Evidence Request through the appropriate channels, and ask a German court in the right state* to compel production.
  • Fourth, the Germans have blocking statutes that may prevent compulsion, and they’ve indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  But there are certain exceptions to the statutes and to the Article 23 declaration; your request has to be written in just the right way.
  • Oh, and you didn’t say “bitte.”  The Germans have a very rigid view of decorum.  Where is your sense of propriety?  (I kid.  Of course, you said bitte.  You just didn’t say it to the right person in the right way.)

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and the Germans hate that.  So do the French, the Chinese, the Brits, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.

* Much like the U.S., Germany is a federal system, where some areas of the law are controlled at the national level, others at the state (“Land“) level.