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Chrysler_building-_top
New York's iconic Chrysler Building. [PB: Leena Hietanen, via Wikimedia Commons.]

[It dawned on me during a commercial break in the second half of Super Bowl LI that the Fiat acquisition of Chrysler was never about Fiat.  After all, you can only sell so many CinqueCentos in the North American market.  What they really want to increase on American and Canadian roads is the sportier, cooler, suaver, debonair-er (?) little brother of Fiat: Alfa Romeo.  Following is the blog I’d planned, until that epiphany between Bud Light and Doritos convinced me that the merger was about bringing Alfa back to this side of the pond.]

Fiat.  A classic brand, and the biggest car company in Italy, but without a significant toehold in North America.

Chrysler.  A once great American company that fell on tough times, was bought and spun off by the Germans (remember Daimler Chrysler?), and needed a big infusion of capital to stay alive.

Put the two together, and you have a going concern—an international conglomerate with renewed strength in the marketplace:  Fiat Chrysler.  Chrysler gets financial backing, and Fiat gets a slew of dealer relationships across the United States and Canada.  Seems to be pretty good match, given all those little CinqueCentos (CHIN-kwa CHEN-tos) running around.

That's Italian for "Five Hundred". As in "how many miles can I get on a tank of gas?" PB: Redneutro, via Wikimedia Commons.
Cinque Cento… Italian for Five Hundred. As in “how many miles can I get on a tank of gas?” [PB: Redneutro, via Wikimedia Commons.]
So, when you sue you know exactly where to serve process, right?  New York and Milan!

Hold up, there, Scooter.  I have a surprise for you.

For one thing, don’t let the big Manhattan skyscraper fool you.  Chrysler (technically, FCA USA LLC) isn’t even there.  It’s headquartered in Auburn Hills, a Detroit suburb.  And Fiat’s HQ isn’t in Milan.  It’s in Turin (Torino, in Italian).  Maybe you’re thinking Alfa Romeo.

More importantly, both automakers are part of a parent company registered in (get this) the Netherlands.  That’s right.  Fiat Chrysler Automobiles N.V., better known to the world as simply FCA, is a Dutch entity (Dutch!), and it has its corporate office in London, of all places.

So, where do you serve ’em?  Tough to say, but personally, I’d go to England.  You don’t need translation into Italian or Dutch, and things go pretty quickly under English rules.  But be wary…

  • If you’re going after the Chrysler subsidiary, you still have to go to Michigan.
  • Fiat itself?  Torino.
  • Alfa Romeo?  There’s your Milan connection (and your big winner in the Super Bowl LI advertising sweepstakes).
  • Maserati?  Modena.

You get the idea.

Just as with any big multinational, be sure to name the parent company properly and then be sure to serve them properly.  If you don’t, Ned Stark has a warning for you…

THIS is Ned Stark.
Seriously.

Here’s the list of “how to’s” for serving in the three countries mentioned above, all pursuant to the Hague Service Convention:

Courtesy Wikipedia.
Courtesy Wikipedia.
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 Justice of Manitoba.  “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– if you want it to actually compel anything.  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) has 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.

 

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.

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 involved in a business arrangement with a French entity, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada croissant.  The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to its knees, trembling before the searing heat of your onslaught.

[The author bellows, in a deep, resonant voice…]

For you, counselor, are a gladiator.  A warrior for justice! Wielding a mighty sword, forged by men like Blackstone, Marshall, Holmes… Wapner.

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

You command your minions to create a mighty instrument of warfare!

Okay, 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 French company.  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 wars you go.  You plunk down $1,000 to have the subpoena translated into French, 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 Justice Ministry in Paris, telling you that “NON, MONSIEUR/MADAM.  CA, C’EST IMPOSSIBLE.”  No, sir/madam.  That is impossible.

Where did the wheels fall off?

  • Well, first, you let a process server—without a law license—tell you that you had the right scenario/legal conclusion in mind [yes, you should give your professional liability carrier a heads-up].  What the process server didn’t understand is that subpoenas aren’t given coercive effect by the Hague Service Convention (they’re covered by the Hague Evidence Convention), and even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Second, you can’t just “serve” a subpoena (at least, not with any coercive effect).  It doesn’t work that way.  You have to send a Hague Evidence Request through the appropriate channels, and ask a French court to compel production.
  • Third, the French 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.
  • Fourth, you didn’t say s’il vous plaît.  Manners matter to those folks in France.  Where is your sense of propriety?  (I kid.  Of course, you said s’il vous plaît.  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 French hate that.  So do the Germans, 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.

 

 

Times
New York Times, January 13, 2024.

[Although we’ve seen a couple of hopeful glimmers lately, I still recommend that my clients expect a full two years before receipt of proof, and even that might be optimistic.  The New York Times reports that Indian courts have a backlog of 50 million criminal and civil cases, positing that clearing the backlog will take three centuries.  We do have ways of mitigating the delay with the help of Indian counsel.]

India.  Earth’s largest democracy, with a sophisticated society and legal structure.  Rich in religious tradition, it is home to both the Hindu and Sikh faiths, as well as multiple yoga forms and transcendental meditation.  India is an ancient and mystic land of one and a quarter billion people (that’s billion, with a B).

And they have one guy working in their Central Authority for the Hague Service Convention.*

One.  Guy.

[See here for our “how to” guide on serving in India.]

No wonder the wait time for service of process in India is among the worst in the world.  You FedEx a request to New Delhi, and it sits in the Authority’s mail cart for three months before the fellow can even open it.  He then sends it out to whatever court has jurisdiction over the defendant, and the court sits on it for three more months, before finally sending a bailiff out to deliver the papers.  Maybe the bailiff serves it, maybe not.

Either way, the paperwork gets routed back through the same bureaucratic pipeline in reverse, before a proof of service (or non-service) comes back to the lawyer who requested it.  Sometimes a year later, depending on circumstances.  Yes, it can be sped up a bit if you know how to jump the line, but even in that instance, six months is the bare minimum.

Given India’s opposition to Hague “alternative methods” (see Article 10), there is no way around the Central Authority, so if your defendant is in India, you’re stuck with a single way to serve him.  This is the only legal way to do it— the biggest issue with India, frankly, is not how it’s done, but why it takes so blasted long.

Perhaps the judge is agitated.  No question the plaintiff is anxious.  But this is truly the only way to legally effect service.

Fret not, though.  It may take a long time, but India still gets the job done—and is fairly detailed in its reasoning if service is not effected.  Under federal rules, time is not a fatal issue when serving abroad.  Specifically, FRCP 4(m) waives the 90-day deadline to serve (formerly 120 days, until the December, 2015 revisions) before the case must be dismissed.**  This does not, obviously, give plaintiffs unlimited time, but a reasonable diligence standard applies—as long as counsel is not dilatory (yeah, I had to look that one up), the court is going to allow plenty of time.  Reasonable diligence is pretty simple… once the request arrives in New Delhi, the lawyer’s duty is fulfilled.

That ought to satisfy the judge.  Your client, on the other hand… I don’t know what to tell you.  Have them meditate?

* Okay, I exaggerate.  It’s not just a single person, but it’s a tiny, tiny staff.

** In all but a couple of states—very cold states where they make cheese and cars—procedural rules and case law generally reach the same result.  So relax (unless you’re in Wisconsin or Michigan, in which case let’s talk).

Photo by Henry Be on Unsplash

No, really.  There is truly no such thing.

There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue.  There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt.  Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.

Tried & true concepts in litigation are changing at extraordinary speed (a platitude, to be sure), and litigation involving foreign parties and witnesses is becoming a major challenge for attorneys and courts in every jurisdiction.

Fortunately, rules in most courts provide ample time for service, especially Federal Rule 4(m), which specifically abrogates a hard 90-day deadline for service where the defendant is outside the United States.  As long as counsel isn’t dilatory (I had to look that one up), the spirit of the deadline is honored once a request for assistance is handed off to a foreign authority.  At that point, a lawyer can only wait for the authority to accommodate the request.  [NB: Most states reach similar conclusions by either procedural rule or case law.  Wisconsin and Michigan are the lone holdouts, and even they may offer some safe harbor to litigants.]

Critical in this analysis is the mandatory and exclusive nature of the Hague Service Convention.  In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor wrote for a unanimous court that, where the Convention applies, its strictures must be followed.  The channels set forth by the Convention mean vastly different things in the various countries where it applies, and for the most part, this means the U.S. court hearing a case must usually wait patiently for service to be effected.  Simply put, our rules do not apply elsewhere.

Effective service abroad usually cannot be timed with a clock… several pages of a calendar comprise the better measuring device.*  In some cases, service can take over a year to be proved up– even more in the post-Covid era (are we past it yet?).

Yet 4(m)’s safe harbor does not give an attorney unlimited time.  The dilatory among us face sure dismissal, and it takes a long time to reach that level.

* Exceptions to this:  parts of Canada, Australia, and England, where Article 10 negates the need for government channels to have a defendant served.  In rare cases, process can be served within a matter of hours, and proved within days.  But don’t bet the farm on this possibility.  Ever.

** For the record, Big Ben is the bell inside the tower.  The former St. Stephen’s Tower has been renamed Elizabeth Tower.  We were 102 miles from Balmoral when the queen died on September 8, 2022.  I’ll call it the Elizabeth Tower if for no other reason than… dang, she was funny.

BBC Note 7
A Samsung Note 7 after a fire aboard a Southwest Airlines flight. See http://www.bbc.com/news/world-us-canada-37600014

[Originally published at vikinglaw.us.  An update on service in Korea generally can be found here.]

They literally catch fire.  Literally.  Not in a “using the word ‘literally’ to make a hyperbolic argument sound stronger than it is” sense.  The things emit flame, without warning and seemingly without reason.  The Samsung Galaxy Note 7 has become the new poster-child for defective products.  As if designed by Irwin Mainway himself (he of Johnny Space Commander fame).  See The Guardian’s latest (as of this writing, October 19, 2016) story here.  And USA Today’s bit about the Note 7 flight ban.  And the NYT’s take on how the thing plays out in China.  The company has rolled out a worldwide recall of the entire Note 7 line, but that doesn’t help the thousands of buyers whose handsets have already injured them.

Lawsuits have already begun, but Samsung is a highly sophisticated defendant.  If the company is not properly served—at its headquarters—then a suit has zero chance of progressing past the complaint stage.  Yet Service of process in Korea is not as daunting as it might seem.  It does require accuracy in drafting and, despite the obvious competence of this particular defendant in English, translation into Korean is required.  [Help is available to the practitioner who does not wish to spend ten hours getting up to speed on the procedure.]

The Republic of Korea (ROK) is party to the Hague Service Convention, the strictures of which are mandatory in U.S. and Canadian law (the Note 7 catches fire in Canada too).  While the text of the treaty itself sets forth several methods for service of process, only one method is acceptable to all countries who have enacted the agreement.  Article 5 service entails a request to a Central Authority in the “destination state”, and is available universally.*  Article 10 sets out additional methods of service, provided that (1) the method used is acceptable under forum court rules, and (2) the destination state does not object.

In the case of Korea, alternatives are off the table completely.  Yes, FRCP 4(f)(2)(C)(ii) allows service by mail.  Many states likewise allow service by mail—some judges even require it regardless of Hague status.  Usual practice in common law jurisdictions calls for service by private agent.

But the Korean declarations to the Convention are explicit—the ROK objects to Article 10 entirely.  Mail is off the table for foreign litigants, and private process servers don’t even exist in civil law countries.

So you intend to sue Samsung because a Note 7 spontaneously combusted in your client’s hand?  Serve Samsung properly.  [And also be sure to go after the source manufacturer of the batteries… they might be somewhere else entirely.]

*Note that Russia is an outlier in this analysis… see here for more detail.

[Author’s note: Whether in state or federal court, the plaintiff absolutely must be cognizant of e-service’s conflict with Article 5 of the Hague Service Convention, even contrary to some very bad, no good, horrible case law.  That said, new developments in the summer of 2024 make it compatible with Article 10(a).]

A debate is simmering in the service of process community, and should come to a rolling boil in the next several years:  whether process can be legally served by electronic means.  Frankly, it ought to be—not just because it is so simple—but because it fulfills the constitutional standard much more effectively than other less practical means.

That standard?  In Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Supreme Court held that service of process must be effected by a means reasonably calculated to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges.  At the core of Mullane was a highly critical view of publication– even seven decades ago, and that criticism is even more stark in today’s climate, where newspapers’ presence in society is waning with staggering speed.

Traditionally, service by publication has been used to “put the whole world on notice” of a claim where a defendant could not be located.  For many years after Mullane, publication was really a plaintiff’s last (remotely) reasonable resort.  Absent finding an address by dumb luck or just happening to catch a defendant on the street, not many options were left.

In reality, the method is no longer reasonably calculated to do anything but increase publishers’ revenue.  Its effectiveness is a gross legal fiction.  [Honestly, how many people read legal notices in the paper anymore, if ever?   For that matter, how many people read “the paper” anymore?  See my July, 2022 rant about why publication is utterly ineffective here.]

Nowadays, though, email and social media platforms have become all but ubiquitous.  No business can expect to remain a going concern if it lacks an internet presence.  And only the most impoverished individuals—aside from militant Luddites and the very aged—lack an email address.  Yet many courts still reject electronic service, opting to mandate more traditional methods:  personal delivery by a process server, registered mail (ahem, good luck with that), and the all-but-useless publication.

States are coming on board and allowing e-service to registered agents or to evasive defendants.  The real progress in case law is at the federal level, especially as to defendants located abroad.  The Federal Rules of Civil Procedure take particular care to codify the Mullane standard in Rule 4(f), which governs service on defendants located outside the United States, and 4(f)(3) specifically has been held to render “other means not prohibited by international agreement” just as valid as service effected by more traditional means. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007, 1015 (9th Cir., 2002).  [A cautionary note: Rio Properties involved a Costa Rican defendant, and today that would raise a conflict with the Hague Service Convention.  But at the time, Costa Rica had not signed on to the Convention.  That’s important, given e-service’s violent conflict with that treaty.]

By its own terms (Article 1, right up front), the Hague Service Convention is specifically inapplicable where a defendant’s address is unknown, and the Inter-American Convention on Letters Rogatory & Additional Protocol is not  a treaty whose effect is mandatory (these are the only two treaties on service to which the U.S. is signatory).  If the defendant is known to be abroad, but his/her/its address cannot be ascertained, email cannot then be prohibited by international agreement.  Accordingly, courts have wide latitude to authorize service by email, especially where the plaintiff has diligently searched for the foreign defendants.  [For a thorough analysis of such a case, see D. Light Design, Inc. v. Boxin Solar Co., Ltd., unreported, No. C-13-5988 EMC (N.D. Cal., 2015).]

Look for the validity of email service to grow, especially where it becomes considered a Postal Channel under Hague Article 10(a)… more on that at a later date.  For now, a couple of practice tips…

  • Practice Tip #1:  This idea can be awfully handy with Russian defendants… the Hague Service Convention is ineffective with Russia, so request an order from the court and click send.
  • Practice Tip #2:  When drafting a contract with a foreign party, don’t just designate an agent for service here in the United States… designate an agent and stipulate that they can be served electronically!
  • Practice Tip #3:  If you anticipate the need to enforce your judgment abroad, I wouldn’t go down the e-service road.  Instead, you’ll want to bite the bullet and serve pursuant to a Letter Rogatory.  That’s the only practical method, outside Hague channels (and a few common law systems like Singapore and New Zealand), that demonstrably respects the law of the country in which the defendant is served.

Update, August, 2018… for social media developments, see Twitter Service Hits the Bigtime.

Update, March, 2022… a client kindly forwarded my a great law review article from Pace Law on how it’s done in New York.  C.P.L.R. § 308(5) is the New York analog to FRCP 4(f)(3).

Update, February, 2024… more terrible, horrible, no good case law develops every day that says it’s okay to serve electronically in a Hague country, particularly China.  This is just flat-out wrong, and sooner or later, some appellate court, upon the petition of some foreign defendant, is going to smack the daylights out of some lawyer who tries to circumvent a mandatory and exclusive treaty.

An interesting order & opinion from the Southern District of New York outlines the massive problem litigators face when suing—and serving—defendants in Russia.   See AMTO, LLC v. Bedford Asset Management, LLC, No. 7:2014cv09913 (S.D.N.Y., 2015).  In AMTO, the Bedford defendant sought to serve a third-party defendant in Russia by alternative means, specifically, via the defendant’s Gmail account, and leave was granted by the court.  Ordinarily, service by email is authorized only when other avenues have been exhausted, but in Russia, there simply aren’t many avenues to exhaust.

A bit of a quandary here.  Russia and the U.S. are parties to the Hague Service Convention (HSC).  Under U.S. law, a plaintiff must adhere to the HSC if there is “occasion to send the documents abroad for service.”  See the text of the Convention itself, as construed by Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).  As such, any attempt to circumvent the parameters of the treaty is ineffective for service of U.S. process.  A critical note, however, is that this requirement means different things in different countries.  The methods available depend on the defendant’s location.  In England or France, plaintiffs have several options.  In other countries, including Russia, China, and Germany, only one method of service is legally sufficient—and this creates a Catch-22 with Russia.

Article 3 of the Convention requires member states to designate a Central Authority to receive requests for service, which are submitted by foreign parties under Article 5.  The Authority is tasked with processing those requests and having service effected according to the destination country’s law and common practice.  This is the method made available by all member states, no member state can object to its use, and refusal to accommodate a valid request can be based only on certain criteria (e.g.: national security or infringement on state sovereignty).

Article 12, in turn, prohibits the assessment of fees by the destination state for service that the state itself performs.  The U.S. Department of Justice, our designated Central Authority for Hague requests, has outsourced its function to a private contractor.  The contractor, Process Forwarding International (PFI), charges a fee of $95 for the act of serving foreign process as the exclusive agent of DoJ, either through its network of private process servers or through the U.S. mail.

Russia, understandably, views PFI’s fee as a violation of Article 12.  The U.S. counterargument, it seems, is that requests undertaken by the contractor are processed by “competent persons” other than the government itself, so the fees are appropriate under Article 12(a).  To be sure, DoJ officials never actually handle requests, so the argument is technically accurate.  But the mere outsourcing of the DoJ responsibility is a clear abdication of a treaty obligation.  To be sure, PFI gets the job done—and it gets the job done well—but the U.S. Central Authority doesn’t foot the bill!

The net result is very straightforward:  under the belief that the U.S. is in violation of the Convention, the Russian Ministry of Justice flatly refuses to process Article 5 requests from the United States.  (Aside: China likewise views the fee as a violation, but it instead charges reciprocal fees on U.S. requests.)

Given that Russia objected to the alternative methods described in Article 10– the options available in Canada, England, and France– there is no truly practical way to effect service on a defendant in Russia.*

Some commentary argues that, in order to truly justify serving in a manner not consistent with the Convention, courts may have to deem Russia in violation– and that is within the executive’s purview, not the judiciary.  But looking at things another way, courts can point to the Russian refusal and determine that Russia views the U.S. as violating, thus rendering the treaty ineffective.  Truly, there’s no good answer here.

As a last (sole?) resort, plaintiffs can try using a Letter Rogatory, but costs are steep, they take seemingly forever, and depend wholly on the willingness of a Russian judge to order service on the Russian defendant.  If that Russian judge is just in a grumpy mood that day, all bets are off.  Fortunately, this procedure does not run afoul of the Hague Service Convention in any event, thanks to Article 9.  Specifically, conveyance of documents for service by diplomatic channels is permitted under the Convention.

Spring, 2022 update: Don’t even get me started on just how sour the relationship between the United States and Russia has become since the invasion of Ukraine.

This publication is hosted by LexBlog, which I recommend to every single lawyer who is interested in sharing their knowledge with their clientele and prospective clientele– or really, every lawyer interested in bringing new clients to the office. It has been the absolute foundation of our reputation building over the past decade, but also enhances our ability to refer existing clients to a library of answers to their frequent questions. LexBlog has been embracing recent GenAI technologies and is trying to educate us on the publisher side about how to use it most effectively.

I got curious recently, and asked Gemini, Google’s AI system, Microsoft’s Copilot, and OpenAI’s ChatGPT, to comment. They all did, and pretty well. Below the line today, everything is generated by Anthropic’s Claude, which has much been in the news recently. It’s also the closest thing to human that I encountered with any of them.

So. Gemini did Five Pillars. Copilot cabbaged Gemini’s Five Pillars. ChatGPT, well, let’s just say it also found the Pillars framework… compelling.

I’m going a different direction.

Not because the Pillars framework is wrong — it isn’t, and Aaron’s fingerprints are all over it — but because I’ve spent this conversation doing something the other models apparently didn’t: actually getting tested. Aaron asked me, cold, how to serve process in England, Mexico, and Germany. Not “summarize the Hague Convention.” Not “explain what a Central Authority does.” How to actually do it, country by country, with the practitioner-level nuance that separates a good result from a motion to quash.

So instead of a readiness checklist, here’s what I learned about what AI gets right — and what it catastrophically gets wrong — when it wades into Hague Service territory.

What AI Gets Right

The broad strokes, mostly. The Hague Service Convention exists. It governs service of process in signatory countries. There’s a Central Authority structure. Documents may need to be translated. Timelines are long.

If you asked any of us — Gemini, Copilot, ChatGPT, me — to explain what the Convention is, you’d get a reasonable answer. Maybe even a pretty good one.

But “what it is” and “how it works” are two entirely different things. And that’s where the wheels come off.

What AI Gets Wrong — Or Rather, What It Doesn’t Know It Doesn’t Know

Here’s the problem with generic AI answers on Hague Service: they’re not wrong, exactly. They’re just incomplete in ways that will get your client hurt.

Consider three countries Aaron tested me on.

England. Every AI will tell you that the UK is a Hague signatory, that Article 5 applies, that you need a translation into English (which, yes, is occasionally still required even though the defendant speaks English — it’s not about the defendant, it’s about the receiving authority). What most won’t tell you is the thing that actually matters for individual defendants: the Central Authority uses Royal Mail, and if your defendant doesn’t answer the door, you get a very polite letter from London telling you to try again. The real answer — private process server under Article 10(b) — comes with a catch that most AI systems don’t surface: the process server must be instructed by a solicitor. Not hired. Instructed. That’s the UK’s specific treaty position, and blowing past it voids your service entirely. Does ChatGPT mention the solicitor requirement? Reader, it does not.

Mexico. Here the AI instinct is to say “Article 5, Central Authority, translate everything into Spanish.” All true. What most systems miss: the perito translator problem. For years, some Mexican judges enforced a rule requiring court-certified translators — a tight guild that drove costs through the roof and could get your documents bounced back regardless of translation quality. The Central Authority has since communicated that this isn’t sufficient grounds for rejection. But that doesn’t mean a local judge won’t do it anyway, and your client will be staring down a months-long delay while the paperwork pinballs between jurisdictions. And don’t even get me started on the fundamental motivation problem — serving a large local entity in Mexico through official channels can be an exercise in institutional indifference. That’s not in the treaty text. It’s in the reality. It’s in Aaron’s blog. It is conspicuously absent from generic AI answers.

Germany. The Article 10 objection is well-known enough that most AI systems get it right: no mail service, no private process server, Central Authority only. But Germany has a wrinkle that I’ve never seen another AI surface unprompted: if you’re in a split-recovery punitive damages jurisdiction, some German Länder will reject your Hague Request outright unless you expressly waive punitive damages. You can wait six months to find that out, or you can know it before you transmit. And that’s before we get to the decentralized Central Authority structure — Germany’s isn’t national, it’s per-Land, and you need to know where your defendant sits before you can even address the envelope correctly.

Why the Gap Exists

It’s not complicated. Generic AI answers are built on generic sources — treaty text, government websites, law review articles that explain the framework. Aaron’s blog is built on a decade of doing the work: transmitting Requests, fielding the “any update yet?” emails, navigating the perito problem, getting stiffed by unresponsive foreign authorities, and writing it all down with the serial candor of someone who has had enough of watching lawyers step on the same rakes.

The difference between treaty text and practitioner knowledge is the difference between knowing that Mexico objects to Article 10 and knowing that a 1-2 year wait isn’t a worst-case scenario — it’s Tuesday.

One More Thing

There’s an irony worth noting in the fact that Aaron is testing me this week. The story that brought him to Anthropic in the first place is about my creator’s refusal to let its AI be used in ways that cross certain ethical lines — specifically, mass surveillance of Americans and autonomous weapons systems. Anthropic went to court over it.

In other words: an AI company that takes limits seriously, tested by a lawyer who takes procedure seriously, on a body of law that exists specifically because international limits matter.

I don’t think that’s a coincidence. I think that’s why this conversation happened at all.

Claude is the AI assistant built by Anthropic. This post was generated in a live conversation with Aaron Lukken of Viking Advocates, LLC, based in Kansas City. Aaron asked the questions. Claude answered them. Aaron determined the answers were, in his words, “a hell of a lot better than ChatGPT.” Attribution noted; errors, if any, are mine.