Tom Hall, via Wiki.

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks “because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.*

In 2016, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts,“ I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

To elaborate on Point Four…

Include a choice of language clause.

This is a classic problem, and it was at the heart of one of my favorite cases in law school, as well as a little known treaty that created a nation:

Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y, 1960).

Yes, you remember the case.  And if you don’t, here’s a hint:

Nobody does it better than Costco. Nobody.

When I first read Frigaliment, I thought I might just need new glasses.  A month into my 1L year, and the judge writes, quite literally…

The issue is, what is chicken?

Remember it now?  It seems the parties to the contract failed to define what they meant by a seemingly innocuous word.  Chicken is chicken, right?

No, said the buyer.  Chicken is “young fryers”, rather than those old, stringy stewing hens you sent us.  Give us our money back.

The case was included in our Contracts casebook to illustrate the concept of usages— course of performance, course of dealings, usage in trade– and it does so beautifully.**  But a significant part of the course of dealings analysis turned on communication between the parties in German.  The German word they used was just as ambiguous, so the court then had to move on to more attenuated analyses, but the analysis necessitated a whole bunch of bilingual gymnastics that courts hate having to deal with– so just avoid the issue altogether.  In the end, it could have been handy to have a translation of the contract, because a German translator may have asked for clarification.  The best ones always do.

The Treaty of Waitangi, 1840

Depending on how you look at it, a tragic loss befell an entire people in the early years of Queen Victoria’s reign.  It seems the Royal Navy sailed into what is now Auckland Harbor and offered a treaty to the native Māori tribes who had inhabited New Zealand for centuries.  The gist of the treaty, in the Māori language:  you guys let us Brits administer these two big islands– islands that strangely resemble Middle Earth, but whatever– and we’ll give you a big chunk of the profits.  Call it rent.

In the English version of the contract, the gist was different:  you guys let us Brits take ownership of these two big islands– islands that strangely resemble Middle Earth, but whatever– and we’ll give you… well, we won’t destroy your civilization completely.  Call it protection.

No choice of language clause would have mattered– the British would have certainly taken the place by force anyway– but the Māoris signed onto the treaty based on the understanding of the terms offered in their own language.  They assumed that their own language governed, and that was a tragic mistake.

The Bottom Line

Don’t let your clients make the same mistake.  Take the issue off the table altogether.  Make a decision about what language is operative because, if you have two versions of a contract without a choice, which do you think the forum court is going to prefer?  THE ONE IN ITS OWN LANGUAGE.

But think about a few things as you do…

  1. Don’t be too certain that your language is the best way to go.  A rural Kansas state court may not have sufficient expertise to adjudicate an international trade case, and it definitely doesn’t have the expertise to parse a contract written in both English and traditional Chinese.
  2. Don’t be too certain that the other fellow’s language is not the best way to go.  In some cases, particularly in China (as highlighted frequently by Dan Harris’ excellent China Law Blog), choosing the foreigner’s language (and law and venue) may prevent a breach altogether.
  3. Be certain the selected language has sufficient connection to the facts & parties involved.  Sure, French might be a great diplomatic language, but if the parties are American and Mexican and the court isn’t francophone, it makes zero sense.  A court might kick the case just out of spite because you’re making the judge and staff work harder than reasonably necessary.
  4. Recognize that the choice of language clause can be an outstanding negotiating concession.  If you’ve concluded that communicating in the other fellow’s language wouldn’t be a tragedy, give that fellow*** what he wants in exchange for something you truly need.  My favorite Nelson Mandela quote: “If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.”  There’s a whole lot of preventive medicine in that idea.  A good chunk of Ubuntu as well.
  5. Above all, for crying out loud, make the venue and governing law correspond to the language!  It’s awfully impractical to expect a Minnesota court to adjudicate a Spanish contract under German law.  Ponder that for just a moment– it insults Minnesota because you don’t believe in English or Minnesota law, in insults Spain (or Mexico or Argentina, etc.) because you don’t believe in Spanish courts or law, and it insults Germany because you can’t be bothered to adjudicate there in its language.

Seriously.  This stuff is crucial, and there is no “required” language.  Do what seems right in light of the circumstances surrounding the language issue.

* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much (a horrible 14 weeks, for sure), but I definitely learned a bunch from Nancy.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.

** Usages are also a great way to illustrate customary international law.  Just because there’s no writing… doesn’t mean the parties aren’t bound by past practice.

*** An explanation on the gendered language: I’m not trying to exclude here.  Just trying to keep some lingustic cohesion in the paragraph.

The Peace Palace, den Haag.

Calling readers’ attention to a celebration… and a quick article published on conflictoflaws.net this morning, by my friend and colleague Mayela Celis, Senior Legal Officer at the Hague Conference on Private International Law.  Given this organization’s impact at the end of a brutal century, it’s little wonder that Tobias Asser was awarded the Nobel Peace Prize.  [If only his guidance had been followed, the 20th century wouldn’t have been even more brutal than the 19th!]

Asser’s Enduring Vision: The HCCH Celebrates its 125th Anniversary

I had the pleasure of visiting the Permanent Bureau two years ago.  Wonderful people, highly capable colleagues… I cannot speak highly enough of these professionals, who are keeping the Asser vision alive and well.

 

Hugo Grotius, Father of International Law.  Portrait by Michiel Jansz. van Mierevelt, 1631 (via Wiki).

Litigators tend to get a bit skittish when treaty law creeps into lawsuits.  And with good reason– most American lawyers come up against treaties only very rarely, and their effects can really harm the unaware.  I promise you, in whatever practice area, sooner or later, some treaty or other doctrine of international law will have an effect on what they (you) do, and it’s critical to know where the landmines are buried.

All that said, let me bring the vaunted idea of a treaty down to the 1L level, because all you need to really know about treaties, you picked up in first year Contracts.  That’s all a treaty is: a contract.  Meeting of minds, offer, acceptance, consideration, breach, remedies, adhesion…  All that stuff plays into treaty analysis, because a treaty is just a contract.*  A special kind of contract.  See Foster v. Neilson, 27 U.S. 253, 314 (1829):

A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

And remember the characterization of a contract as a sort of particularized law, enacted by the parties to govern a particular relationship.

Just about every treaty refers to its signatories as “Contracting States” or “High Contracting Parties”, so you don’t necessarily need Justice Story to illustrate the point.

That said, note the careful wording of the opinion (here’s where it gets a bit complicated).  A treaty in its nature is… not a legislative act.   But by virtue of the Supremacy Clause, it takes on the authority of a legislative act because it is ratified with the consent of the legislature (or at least half of it) and becomes supreme law.**  It thus overrides any lower authority in conflict with it.

Obviously, the best example in my world: the Hague Service Convention, which technically forces U.S. rules to give way to foreign law.

You read that correctly.  Foreign law overrides U.S. law.

Let’s say you’re suing a German defendant in federal court.  Due process requires that you serve by a means reasonably calculated to (1) put the defendant on notice and (2) provide the opportunity to defend.  FRCP 4(f) says serving by mail is okay if a treaty allows it, right?  And Article 10(a) of the Convention says mail is acceptable, right?

Well, not exactly.  They both defer to the other country’s viewpoint on the issue.  Rule 4(f)(2)(C)(ii) says mail service is okay*** if a treaty allows but doesn’t specify other means– and provided it isn’t prohibited by the foreign country’s law.  (See?  Even the FRCP defers to foreign law.)

But we don’t even need to analyze German law, because as it applies to Germany, the Hague Service Convention doesn’t allow it!

Article 10:  Provided the State of destination does not object…

Germany objects– as do China, Mexico, Switzerland, Korea, etc.– so Article 10, including the “postal channels” option in 10(a), is off the table.  A treaty thus allows a foreign country to override U.S. rules.  [That’s really gotta rub Roy Moore the wrong way!]

The power of this contract really is massive.

* Remember that you can have a contract without paper.  Even absent a written treaty, customary international law can still bind nations to a certain code of conduct.  Imagine customary law like you view usages… how have we done it in the past?  Course of performance, course of dealing, usage in trade… same concept, but applied differently.

** Not to get into tall weeds, but there are actually two types of treaty: those that come into effect by their own language upon ratification, and those that require implementing legislation.  The latter sort really does become a legislative act, requiring both chambers’ assent.

*** It’s usually a horrible idea– even if it’s legal.  And even in those rare cases where mail is the only viable option, it still must be done properly.

 

Wikimedia Commons

An interesting story hit the blogosphere a couple of weeks ago (see “MtGox’s US customers try to find Mark Karpeles” over at the FinanceFeeds blog).  I won’t pretend to understand the mechanics of the case discussed– the Bitcoin phenomenon and the MtGox security breach lie far outside my expertise, and frankly, the whole concept is pretty complex and I don’t have the time to give it reasonable study.  Suffice to say that this case is a classic illustration of just how complex cross-border finance and cross-border litigation have become.

A particular paragraph in the post caught my eye:

Karpeles is a French citizen believed to be living in Japan, so service upon him is governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. In order to effect service under the Hague Convention, a physical address is required.

Well, sort of.

Er, not exactly.

Wait… no.  That’s not right at all.

It is correct that in order to effect service under the Convention, you have to have an address.  But service on Karpelès is not “governed” by the Hague Service Convention unless and until the plaintiffs know his whereabouts.  He is merely believed to be living in Japan.  By its own terms (Article 1), the Convention doesn’t apply “where the address of the person to be served with the document is not known.”

In short, if the fellow can’t be found after a diligent search, adherence to the strictures of the Convention is unnecessary.  Frankly, adherence is impossible, because the primary bit of information necessary for a service request to a Hague Central Authority– Japanese, French, or otherwise– is where to find the guy.

So what is a litigant to do?  Well, do what the DNC did earlier this month: use Rule 4(f)(3) to serve him electronically (see my recent post “Twitter Service Hits the Bigtime“).  Or ask the court to appoint his U.S. counsel– if indeed he has counsel here**– as his agent for service, then serve him under 4(e)(2)(C).

The FinanceFeeds post went on to say that…

The Court agreed that the time for Mr Lack to file Proof of Service on Defendant Mark Karpeles should be extended to and through October 31, 2018.

That tells me that none of the lawyers in the room (including the judge) are reading the whole of Rule 4(m), the basis for the standard 90-day deadline to serve a defendant.  The last sentence of 4(m) is a beautiful little safe harbor for plaintiffs seeking to serve abroad:  “This subdivision (m) does not apply to service in a foreign country…”  [Emphasis mine.] *

Now, that doesn’t mean a plaintiff has unlimited time to get the job done– a reasonable diligence standard applies– but it does negate the need to extend anything.  The plaintiff merely has to not be dilatory (I had to look that up once) in his efforts to serve.  Yes, keep the court updated on your progress.  Yes, make sure the judge knows what you’re up against.  Don’t give up on the effort.  Just know that an ordinary extension of time isn’t necessary.

The takeaway from all this?  Not all is lost if a defendant can’t be located, and the Federal Rules of Civil Procedure account for that.

* At that, even assuming the plaintiffs do find an address, they shouldn’t expect a proof of service by the end of October.  Serving in Japan has been taking longer than normal lately– and “normal” is four months, at best.

** UPDATE (a day after posting):  Within hours of my post, up pops another FinanceFeeds article about this defendant, but in a different suit in N.D. Ill.  Apparently, yes, he does have U.S. counsel.  And the ability (not to mention, obligation) to waive.

*** ANOTHER UPDATE (February 11, 2019):  According to FinanceFeeds, a plaintiff has ascertained the defendant’s address, which would upend the conclusion I made last summer, but the address seems to have failed.  So now, the plaintiffs are shooting for alternative service, which should include electronic means!

 

The very boots. This image is tastefully cropped & zoomed so as to not appeal to prurient interests.

[Author’s Note:  In a bit of sad irony, my initial draft of this post was written just as news of Kate Spade’s suicide broke on June 5th.  Honestly, I knew very little about her except that she (1) designed handbags and (2) is a local icon here in Kansas City.  She grew up here, and attended high school a mere two miles from my house.  As I’ve come to find out, she brought some Midwestern sensibility to the fashion game, and thus made a pretty big impact on a pretty big industry.]

I’ve attended a lot of CLE lectures over the years, but the best one I ever saw was overseas.*  All of the best ones are connected to some sort of long flight, because if you’re in Rome or Paris or Istanbul or Oxford, how bad can the lecture possibly be?  Just the setting alone makes them interesting.

Until a few years ago, I had no idea that “Fashion Law” was even a thing.  I doubted highly that designer clothes mattered even a bit in the great grand scheme of the universe.  Then I heard my friend Layne Randolph‘s lecture on trademarks and trade dress, and I was astounded to discover that, not only was this really “a thing,” but the thing matters– immensely.  I simply hadn’t ever contemplated the economic value of high-fashion brands.  I’d always viewed Ralph Lauren and Kate Spade and Vera Wang and Manolo Blahnik as a just bunch of fussy/snooty people that were waaaaay too proud of themselves and their work-product.  It didn’t help that I’m a big guy, and fashion houses aren’t exactly beating my door down, begging me to buy their stuff.  It also didn’t help that many years ago, an ex-girlfriend routinely forced me at emotional gunpoint to watch Sex & The City with her.  I hated every excruciating moment of it, and I hated fashion designers by association.

But Layne’s presentation was awfully compelling.  As a newly minted J.D., I found the just-filed Christian Louboutin suit against Yves Saint-Laurent an excuse to pay attention to her query: whether Louboutin’s iconic red soles were protected as a mark or dress.  It was a pretty compelling legal question.

You learn something new every day, right?

Well, a few weeks later, I plunked down nine dollars to see the third and final installment of the Men in Black series.  In the opening scene, a rather curvy alien woman walks down a hallway in a super-duper-maximum-security prison on the moon (hey, I didn’t write it) to spring her boyfriend/boss, one of the guys from Flight of the Conchords (I said I didn’t write it).

Of course, movies these days are all about prurient interests, so the very first action shot is of the bright red soles on the woman’s thigh-high boots as she walks away from the camera while it slowly rises to a very high-cut leather mini-skirt and…  well, you get the idea.  Just what every twelve year-old boy wants to see at the movies.

Being a twelve year-old boy myself (our bodies age, but our brains’ development arrests in the 7th grade), one would think I’d follow the camera and enjoy the highly inappropriate objectification of a woman’s body.  Nope.  I was fixated on those crimson soles and the legal issues surrounding them.  I wondered how many lawyers were involved in the licensing agreement that Columbia Pictures needed Christian Louboutin’s people to sign, just for that one shot, and w0w, what a waste, because the product placement value of this particular trade dress in a scene targeted to twelve year-old boys is…

This one would be a tough one to go after. Serving in India is a bear.

Dammit.  I’m an adult.  And a lawyer to boot.  (See what I did there?)

Now that I handle service abroad nearly full time, I still can’t watch that movie and not ponder the procedural implications.  What if a Dutch company decides to make a cheap knockoff of the same boot?  What are the procedural hurdles?

Well, watch the latest Louboutin kerfluffle unfold and you’ll find out.

In short, y’all, the world has reached globalized status, and all the ire the Tea Party can muster is not enough to put the Genie back in the bottle.  Litigation crosses borders more now than ever, and although we lawyers like to think the law has streamlined itself since the dawn of the internet age… nope.  Not as much as you might think.  In much of the world, service of process is still effected in the same manner it was in 1965, when the Hague Service Convention first came about.  The treaty is still mandatory, and it’s still exclusive doctrine, so trademark and trade infringement suits must still be properly served.  Pay attention to detail.  It matters.

* Shameless plug:  UMKC Law hosts a couple of CLE Abroad programs every year, and I have the privilege of speaking on many of them.  The trips are a whole bunch of fun… and potentially deductible.**

** You bet your sweet bippy there’s a disclaimer on this one.  I’m not a tax lawyer and, if you’re reading this, neither are you.  So seek specific professional advice on whether you can deduct an overseas CLE trip (or how much of it you can).

[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.  The obvious irony here is that I’m using two images of the great actor Sean Bean which, although developed in satire, are blatant rip-offs.  My hope is that I’ll be forgiven, given my ardent and emphatic recommendation that my readers go back and watch The Lord of the Rings and Game of Thrones— at least Season One.  If that’s unacceptable, I will readily cease & desist.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a a copyright lawyer– I don’t do immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle copyrights exclusively, no visa applications ever.  What if some random website hosted somewhere overseas decides that “all your base are belong to us,” rips off your client’s content, and publishes it as their own?  Your client justifiably seeks proper attribution and compensation, but the infringing party refuses to cooperate. So you sue.

But don’t you think you might have to serve the publisher?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, if you’re going to serve in a foreign country, odds are quite good that the Hague Service Convention applies, so you’ve got to figure out what options are available to you.

Next, you may have to set up a translation of the documents.  Never mind that the stolen copy is in English– so the bad guys must understand English– foreign translation requirements aren’t focused on the defendant’s comprehension.  They’re focused on the foreign officials handling the documents.

Then ask the appropriate Central Authority for help.  And pray that you’ve filled out your USM-94 correctly.  [That’s a big one.  Very important, the USM-94.]

If you don’t get them served…

This is Ned Stark.

You’ll have a tough time getting the copy attributed to your client without that defendant.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a patent lawyer– I don’t do immigration.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle patents exclusively, no visa applications ever.  What if some offshore bad guy (let’s call him “OBG” for short) decides that “all your base are belong to us” and starts making your client’s widgets with his own name on them?  Your client, who sacrificed an incredible amount of blood, sweat, and tears** to invent– or an incredible amount of money to buy the rights to– the widget, wants to sue.  Now.

Well, don’t you think you might have to serve the offshore bad guy?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, for most of the world, start off by looking up the Hague Service Convention.  It’s mandatory doctrine if you need to serve OBG in his homeland.

In all likelihood, you’ll have to set up a translation of the documents– and that’s a big deal with patent cases, so here’s a handy guide on how to keep those costs down.

Then, you’ll have to determine what alternative methods are available.

Then, if you go the Article 5 route, ask the appropriate foreign Central Authority for help.

Last, pray that you’ve filled out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

If you don’t get him served…

This is Ned Stark.

You’ll have a tough time making the patent-holder whole.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Apologies to a certain Mr. C of Blenheim, Oxfordshire.  The original quote included “blood, tears, toil, and sweat” but a 1970s fusion band morphed it a bit for brevity.

My actual screenshot, taken on a bus from Oxford to Heathrow.

Two years ago, I wrote about the “coming of age,” if you will, of service by electronic means.  Well, the idea just hit the bigtime with service on Wikileaks via Twitter.

Setting aside questions about properly identified defendants (read: properly named entities and individuals associated with them), his one seems to fit squarely with a Rule 4(f)(3) alternative.  That is, the legality of it seems okay.

If Wikileaks has an address, it seems for the moment that company HQ is inside the Ecuadorian Embassy in London– a mere 20 miles from me as I write this.*  This could mean either of two governing regimes controls: the Hague Service Convention or Rule 4 alone.

If the Embassy is viewed as Ecuador’s sovereign territory, no mandatory treaty governs manner of service.  If it’s not (and the UK apparently takes this view), Hague channels just aren’t tenable.  No process server is getting in the gate, and neither is an English judicial official.  Mail is silly to even contemplate, whether sent from the clerk or from the UK Central Authority– it’s a non-starter to think Julian Assange is going to sign for a FedEx delivery from either.  (UK service under Article 5 is usually mailed.)

So, what’s a court to do?  Authorize an alternative means that, under the circumstances, is reasonably calculated to put a defendant on notice of a claim against it– and offers an opportunity to defend.**

That’s the constitutional standard, and it seems to have been met here.

Now let the substantive arguments begin.  (There are some whoppers to come.)

* My last dispatch from England this trip… ironically a trip to discuss Hague service with colleagues from the UK and the US.  I write this from a bus on the way to Heathrow.

** See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) for the full discussion.

The mind just reels.  I’m in England at the moment, and an England issue has come up that I cannot bear yet again without a rant.  Forgive me…

Lawyers, stop taking legal advice from non-lawyer process servers.  Just stop it.  That goes double for non-lawyer process servers in other countries.

Seriously– it’s like an MD taking diagnostic direction from a CNA.  Sure, the aide is a vital part of the medical team,* and they do some amazing work.  But if things go badly, the malpractice suit isn’t coming at the aide.  Yes, the physician has to rely on the aide’s input, and the aide may be incredibly talented at carrying out a treatment plan, but the responsibility of decision lies with the person with all those fancy diplomas on the wall.

Twice in as many weeks, I’ve had U.S. lawyers call me to ask how much it costs to have a defendant served in (England, India), and I unabashedly tell them what I charge.

Oh, that’s too much.  I’ll just go directly to a process server.  I emailed a guy in (London, Bangalore)– he tells me it’s no sweat– he can fix me up for about what my local guy charges me.

So this is me, for a moment…

Ahem, no.  It doesn’t work that way.  In either country.  The Hague Service Convention governs both scenarios, and both countries’ declarations are pretty straightforward on how to effect service.

Options in ENGLAND:
  1. Article 5 request to the Central Authority.
  2. Mail, under Article 10(a)… almost always a bad idea.
  3. Private Process Server, Article 10(c).

But the UK position on Article 10 carries a caveat: using a process server is only valid if that process server is instructed by a solicitor.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.

Options in INDIA:
  1. Article 5 request to the Central Authority.  END OF LIST.
  2. THERE IS NO OPTION TWO IN INDIA, despite what India-based process servers may tell you.

The truth is, India is one of the few common law jurisdictions that doesn’t have them except in rare circumstances.  If the process server tells you not to worry about it, give your malpractice carrier a heads-up because you’re taking advice on U.S. law** from a foreign non-lawyer.  A guy in Bangalore saying he’s a process server is a bit like an Über driver  in New York saying he can fly you around in his drone.  Yeah, it’s theoretically possible, but… jeez.  Come on.

So why would one of those folks overseas make claims like these?

  • Oh, yes, we can serve those documents in Gujarat for you.  Nooooo problem.
  • No, you don’t have to worry about the Hague Service Convention.  Nobody here takes it too seriously.
  • We’re a common law country, just like you.  We do things the same way you do.
  • Of course I can take instruction directly from you, mate.  You’re a lawyer, right?

Why do you think they make such claims?  Because they have a commercial interest in convincing you to hire them instead of a U.S. lawyer who handles this sort of thing all the time.

But here’s the huge difference: a U.S. lawyer who handles this sort of thing all the time is actually cognizant of (and concerned about) compliance with U.S. law as it relates to the treaty.  We actually understand that Sandra Day O’Connor’s thoughts on the matter are a bit more valid than those of the fellow in London or Bangalore.

The takeaway from this rant?

  • In England (and Wales), make sure your process server understands that his/her affidavit must (1) demonstrate that Hague doctrine has been observed, and (2) reflect that s/he is instructed by a solicitor.
  • In India, don’t even bother.  You’ve got to make an Article 5 request to Delhi.

Oh, and if you try pulling this stunt in China… you and the guy you hire are subject to arrest and imprisonment.

I hear the food’s not very good in Chinese prisons, so good luck.

 

* I use this analogy carefully– my grandmother was a nurse’s aide, and she was the most competent caregiver I’ve ever known.  This post is not about whether process servers know their stuff.  They do– and I have several that I rely on regularly.  But legal analysis isn’t their stuff.

** The Hague Service Convention– including a foreign countries’ declarations to it– constitutes supreme U.S. law, which particularly overrides conflicting lower law.  That pesky old Supremacy Clause strikes again!

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.