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Yale Law Library... where the rules live. PENG Yanan via Wikimedia Commons.
Yale Law Library… where the rules live.  PENG Yanan via Wikimedia Commons.

An interesting and seemingly Hague-related case came to light this week, and it came specifically to my attention thanks to the NorCal IP Blog by the guys at Orrick Herrington.*   As it turns out, it isn’t a Hague case after all.  It’s a straight-up civil procedure question.

The case, in a nutshell:  Japanese company, Godo Kaisha IP Bridge 1 (Godo for our purposes here, but the judge calls them IPB), sues American company Xilinx  (ZY-links?) for patent infringement in E.D. Tex., the current hotbed of IP litigation.

Xilinx, as luck would have it, sued Godo for patent infringement in N.D. Cal.– the mother ship of IP litigation– the very next day, and asked the judge for leave to serve Godo via Godo’s U.S. counsel.  Motion granted.

The judge’s order, as you can see here, explores the interplay of Rule 4(f)(3) and the Hague Service Convention, but it misses a critical point in the analysis:  the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.”  It’s right there in Article 1.

If you can serve a foreign defendant in the U.S. (whether via a subsidiary or via its U.S. counsel), the Hague Service Convention is inapplicable.  Utterly irrelevant.  Moot.

But even more critical… so is Rule 4(f).**  It only applies to service at a place outside the U.S., not here at home.  If service is to be effective via a foreigner’s U.S. counsel, it must be pursuant to Rule 4(h)(1)(b)… that is, “by delivering a copy of the summons and of the complaint to (…) any other agent authorized by appointment or by law to receive service of process.”

The salient question, which I avoid exploring here, is whether U.S. counsel can be appointed by the judge hearing the case.  Ultimately, this shouldn’t even have been a Hague question– it should have been an analysis of Rule 4, its overseas procedures excepted.  Had the judge denied the motion, then plaintiff’s counsel would have been forced to serve in Japan, and only then would Hague procedures be implicated.

[Don’t even get me started on why everybody ought to just waive in the first place.  Sure, you wouldn’t have to hire me, but still…]

Update, 4/13/17:  Ted Folkman posted on a similar opinion out of the same district on this morning— the latest in a line of cases he’s explored over the years.  As Ted points out in the comments below, only one case, out of E.D. Mich., has gotten it right, but he squares the circle for the others quite nicely in his thoughts on the Michigan opinion.  I commend those thoughts to you.

* Hat tip to Daniel Justice (could there be a better surname for a lawyer?) and George Kanabe.

** Rule 4(f), in its entirety [applicable to corporations thanks to 4(h)(2)]:

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

Wright FlyerFor the entire life of my firm, I’ve had a recurring theme in just about every blog I’ve posted:  yes, counsel, you do have to translate that thing.  Translation is almost always unavoidable if you want a realistic chance of collecting a judgment.  But last summer, I offered some tips to limit the cost of translation of documents that have to be served abroad.  The first two bits of advice: keep brevity in mind (easy as pie for lawyers!), and avoid exhibits wherever possible.*  Within the past month, these ideas have become particularly important to two separate clients in the very same practice area:  patent infringement.  Problem is, those clients hadn’t heard the advice prior to filing their claims, and it has cost them dearly.  Six figures dearly.

Patent infringement suits frequently involve foreign defendants.  Routinely.  In any sort of lawsuit, when just one defendant has to be served in a non-English-speaking country, especially one that is a member of the Hague Service Convention, the documents to be served must be translated.  Every word, every page, including exhibits, which are naturally part of the complaint they’re attached to.  The defendant may be quite competent in English—he may even be a U.S. citizen or “it” (an entity) may be presumed competent simply because it does business in the United States.**

None of that matters, because it’s not about the defendant.  It’s about the foreign officials handling the documents… and those officials don’t sprechen-sie Englisch or parlez-vous anglais.

When even a seemingly short patent is included in the exhibits, the cost to translate goes up considerably.  When two or three (or ten!) patents are involved, the cost can be astronomical.  So how do you get around the cost?  Well, unless local rules force you to attach them as exhibits, just reference the patents and quote the relevant portions.  They’re a matter of public record, so if your defendant wants to know what a particular paragraph says in a specific patent, it isn’t that hard to look up.

Take the Wright Brothers’ patent for the aeroplane (yes, it’s spelled that way in the filing).  It’s just shy of seven thousand words.  Translate that thing into Chinese, and you’re looking at a $2,000 project, with formatting and editing and proofreading.  The Wright patent is a mere seven pages, omitting drawings.  Today, hundred-page patents are routine.  Extrapolate that into dollars and you see the horror of serving in three different countries, all of whom require a different language other than English.

But if the complaint just says “reference U.S. Patent No. 821,393, page three, line ten”, and includes the relevant text and figures (but omits the rest), a whole bunch of resources are saved.

Unfortunately, if you’ve already filed the complaint with the full text, it’s probably too late.  But a bit of forethought prior to drafting can save literally tens of thousands of dollars in costs to serve.

Tens. Of. Thousands.

Who doesn’t want to do that?

* My understanding is that it’s not possible in D. Del., as local rules require that patents be attached.  If anybody knows a way around that rule, give a shout.

** Ahem, “it” being an entity.  Yes, if an entity does business in the United States, it is presumed to be competent in English.  But that isn’t the end of the analysis.  When serving such defendants, their home countries’ declarations to the Hague Service Convention control language issues—not the presumptions of U.S. law.

Complete with screenshots!

Last spring, I did something that a cynic might call monumentally stupid:  I published the recipe to the Secret Sauce of serving process abroad.  Literally, a step-by-step guide to the procedure, right there for all to see.

“Are you out of your (expletive deleted) mind?” one of my close friends asked me.

Well, it would seem so.  I left a six-figure sales job to go to law school.  Draw what conclusion you will.

But a bit like McDonald’s and the Big Mac, I’m not worried about a do-it-yourself lawyer reading my blog and then doing it.  Nobody makes Big Macs at home.  Too much hassle.  It’s much easier–not to mention cheaper–to just hit the drive-through.

But many among us insist on self-sufficiency, so another friend suggested that I elaborate on the ten steps in the recipe with a separate post for each step.  As it turns out, either (1) I’ve already done so, or (2) it’s pretty straightforward stuff if you just click on the link indicated in each.

But for several steps, I linked to the website for the Hague Conference on Private International Law.  It dawns on me that a DIY lawyer might run into a wall when looking things up on that site.  So here’s a handy guide to getting country-specific information from the Service Convention section.  Feel free to sing play along at home.  [Apologies to phone/tablet readers… you really need a big screen to get the full effect.]

To start, click here (the main page for the Convention text) , and then choose “Status Table” as indicated below.  (The right-hand menu appears throughout the Service Convention section, so the site is pretty easy to navigate.)

HCCH 1Note that there are two tabs in the status table… this merely reflects the fact that a country need not be a member of the Conference in order to join a treaty.  (The converse is also true—of some three dozen Hague Conventions, the U.S. is party to only a few.)

HCCH 2

The status table indicates not only whether a country is in the treaty, but also how it joined, when it ratified, and when the treaty entered into force for that country.  For the sake of illustration, we’re going to highlight Belgium here– it’s high up on the list, so grabbing screenshots is much easier than, say, Vietnam (the newest member).  The table is handy for determining if a country has signed the treaty, but not ratified or put it into force (example: the U.S. has signed, but not ratified, the Choice of Court Convention).

Belgium (my adopted boyhood home*) signed the Service Convention January 21, 1966, ratified it September 19, 1970, and put it into force January 18, 1971 (note the “D” on the right—that indicates that declarations apply).

HCCH 3

Now click the “Authorities” button in the side menu (the orange arrow in the figure above).  Sticking with Belgium, click on Central Authority & practical information.

HCCH 4

The coming page really does tell you everything you need to know about its application in a particular country.

HCCH 5

The elements to look for:

  1. The name & address of the Central Authority. This is where you send your USM-94.
  2. The Central Authority’s email address. Some will answer you, some won’t.  It’s not personal.  It’s just business.
  3. Languages spoken by staff. This can be deceiving—even though they might say they speak English, they often don’t, in which case it’s a bit difficult to get an update.

HCCH 6

  1. Translation requirements (Art. 5(3)). Exactly what it says.  This entry, too, can be deceiving.  Even though the Central Authority might not require it, in non-English-speaking countries, the judicial officer executing your request might refuse to serve it without a translation.  When in doubt, translate.  Note that in Belgium, the proper language of the translation depends on locality.
  2. Costs relating to the execution of the request (Art. 12). The Convention prohibits the assessment of fees for serving process…

Article 12

The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed.

The applicant shall pay or reimburse the costs occasioned by —

a) the employment of a judicial officer or of a person competent under the law of the State of destination,
b)  the use of a particular method of service.

Seems pretty straightforward if you ask me—service is supposed to be free, unless you directly engage a judicial officer/competent person or request that a particular method be used by the Central Authority.

But (and it’s a big but)… many countries, including the United States, wiggle out of the fee prohibition by using the judicial officer or competent person method as a matter of course.  The US Central Authority (USDOJ) outsources its function to a private company, which then charges $95 to serve.  This frustrates other countries, who retaliate by either assessing a reciprocal fee (China) or rejecting US requests outright (Russia).

Back to our story…

  1. Judicial officers or other competent persons (Art. 10(b)). These are the folks you can contact directly to serve on your behalf (in Anglophone Canada, go to the Yellow Pages, of all places!).  In Belgium, you see here… contact the National Chamber of Bailiffs (hussiers de justice).

HCCH 7

  1. Declarations as to Articles 10(a), 10(b), and 10(c). Many countries object outright, so Article 5 is your only available channel (eg: China, Mexico, Germany).  Belgium, like the United States, opposes none of them.  Japan objects to 10(b) but sort of not to 10(a)… let’s just say it’s complicated in the Land of the Rising Sun.

Be incredibly cognizant of the destination state’s opposition to the alternative methods in Article 10.  Opposition means don’t even try it, pal, because declarations of opposition are part of a treaty.  Treaties, in turn, override the Federal Rules of Civil Procedure, and they override state law.

This is Boromir. It is not Ned Stark.
Hey, look!  It’s that guy from Game of Thrones Lord of the Rings!

Yes, that supremacy applies to the Hague Service Convention.

That, friends, is key to the whole service of process puzzle.

Hopefully, this gets you where you need to be on the HCCH website.  The Permanent Bureau is a tremendous resource for all of the Conventions, but the website provides all but the most intricate guidance for the Service Convention and others.

And if you run into a snag, gimme a call.

* In 1977, my dad was a few years into a career driving a desk for the U.S. Army.  That summer, our family went on a grand, three-year adventure in Europe.  The old man was assigned to Allied Headquarters in Belgium.  President Carter said go, we went, and I developed a life-long obsession with perfectly fried potatoes.

 

 

 

 

 

 

1024px-Luther_College_Farm_Decorah_IA_060
Luther College Farm, Decorah, Iowa (the college recorded the deed, I'm guessing). Image by Karen Noecker. via Wikimedia Commons.

Another real lifer here… why should you outsource your international work instead of keeping it within your firm’s cloistered walls?  Simple.  Because your clients will be better off if you go outside.  Because you don’t know what you don’t know—and what you don’t know can’t be ascertained from a Westlaw search.

Bear with me.

Think back to those idiotic fact patterns on the bar exam, in which “Oscar conveys his farm to his brother’s son Ned, and then Ned deeds the farm to Carl, his second-cousin on his mother’s side, and then Carl fathers six children but dies intestate, and neither Ned nor Carl ever record either conveyance.  What result?”

Our collective groan at the mere thought:  just record the damned deed, man.  It’s not that difficult.

But as it turns out, those fact patterns weren’t really so idiotic.  A while back on Next Door, a woman in my neighborhood posted:  “Need a recommendation for a lawyer.  I just got married and I want to put my wife’s name on the deed to my house.”

Apparently, every software developer and barber and realtor** within a twenty-block radius is suddenly an expert on marital property law.

Now, to be sure, a whole bunch of people offered the names of several top flight firms in town, big and small.  One of the lawyers even said, very diplomatically “my firm can help you with that.”  But among the suggestions from the (non-lawyer) instant experts:

  • Just do a quit claim deed.  (Several of these, including from the realtor, who ought to know better.)
  • They have the forms on the county website.
  • Call a title company instead of a lawyer.
  • Second most cringe-worthy comment on the thread: “Don’t pay more than a $100.” (sic)
  • Most cringe-worthy comment on the thread: “You CAN do this yourself, you know.  Just look it up online.  All you have to decide is whether you want a joint tenant or joint tenant with right of survivorship.”  (Missouri is a tenancy-by-the-entirety state, which fact is completely unknown to the lay experts in my neighborhood.)

Now, every lawyer who read the original question had flashbacks to Property 1 and the words “I convey Blackacre to the second daughter of my landscaper, Felipe, on the condition that she marries on the evening of a harvest moon and only gluten-free beer is served at the reception.”  This hypo raises a host of questions.

  • What if Felipe doesn’t have a second daughter?
  • What if Felipe is no longer the owner’s landscaper?
  • What kind of estate is created in the second daughter—a life estate?  A leasehold?  Fee simple?
  • What if Brookside Wine & Spirits is out of gluten-free beer?!

Back to the real-lifer.  Let’s say Next Door’s blushing bride ignores the lawyers, does what the laypersons recommend, and simply makes the conveyance with a quit-claim.

  • What if there’s a divorce?  Does she want a contingency for that?
  • What if the newly-powerful Alt-Right succeeds in rolling back Obergefell, and Missouri courts subsequently nullify marital defaults for same-sex couples?
  • What if the question-asker’s new wife dies and the wrong tenancy causes the question-asker to lose half the interest in the house to her new in-laws who hate her?
  • What if she wants her new wife only to have a life estate, but intends the remainder to go to the Saint Helen of the Blessed Shroud Orphanage in Calumet City, Illinois?
That big chase scene in the Blues Brothers? Yeah, she made that happen.
Seriously?  You’d want this woman involved?

It’s a parade of horribles, truly.  And every single person with a law license looks at such a situation and emits a silent scream at the absurdity of someone not contacting a lawyer for an hour of advice.

Yet every day, how many lawyers say to themselves “oh, this is just a matter of filling out a couple of forms” when they need to serve process on a defendant located in another country?  (Yes, you CAN do it yourself, but in most cases, shouldn’t.)

Or worse, “pffft, just mail it.”  (Bad idea.)

Or worse still, they recognize that they’re out of their element, but decide to hire Bob the Process Server to handle the forms because Bob is cheaper than an actual lawyer who handles this stuff.  (Call your malpractice carrier.)

Until I’m blue in the face, I’m going to continue the argument…  outsource this stuff, y’all.  You don’t know what you don’t know, and your client will suffer for it.  Just like the newlywed in my ‘hood.  If she doesn’t talk to someone who can ask the right questions, she’ll never be able to say what the right answer is.

[Spoiler: she talked to a lawyer.  Score one for the good guys.  And simple sense.]

* Version 1.0 here, and Version 2.0 here.

** Yep, the realtor weighed in with the preface “I’m not a lawyer, but in my opinion…” before suggesting something other than she’d requested.  I mean, I’m not a doctor, but in my opinion… you can cure psoriasis with a hefty dose of Arthur Bryant’s Original Barbecue Sauce.  Okay, I am a doctor, but a Doctor of Jurisprudence.  Not the kind that can speak authoritatively about dermatological cures.

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.

Eggnog
Veganbaking.net, via Wikimedia Commons.

Ah, bar association Christmas parties… such fun.  No, really, I do enjoy them.

Last month, over a glass of heavily spiked eggnog, a friend introduced me to a senior partner from a big firm that happens to be one of my clients.  An excellent client, actually, so I thanked him for the firm’s business and told him that I really appreciated the chance to support such a great outfit.

“How do you mean, we’re a client?” he asked.

Oh, I’m what you’d call a consulting attorney.  I handle cross-border procedural issues, and your litigators call me when they need to serve process or compel evidence production in a different country.

“What?!  They’re supposed to use internal resources to do that—they aren’t supposed to look outside.”  He seemed a tad incredulous.  I couldn’t shake the mental playback of Wilford Brimley subtly admonishing Tom Cruise to do what’s right for The Firm.

Which in turn made me a tad incredulous.  This is not Bendini Lambert & Locke.  It’s a real and highly successful law firm that has gotten that way precisely because they project an innovative image. In hindsight, I’m guessing (hoping?) he merely thought that I meant his litigators called me before even talking to each other.  Surely, if the folks down the hall don’t know, it’s okay to call me, right?

So I told him, y’see, the stuff I do is in an awfully tight niche.  It ends up being much less costly for your clients if I handle something, rather than billing ten hours for an associate to research how to serve a subpoena in Germany, just to get it wrong.  (Spoiler: you can’t. Das ist verboten.)

Mr. Incredulous Big Firm Partner (IBFP) walked away grumbling, and I couldn’t chalk up his incredulity to drinking too much eggnog.  He probably just hadn’t read my prior post on why law firms should outsource this kind of stuff.   (Spoiler: because clients.)

My point here is this: harnessing efficiency is the great challenge before the practicing bar in this new year—and likely will be for many more.  Really, it’s a matter of changing mindsets more than anything.  Lindsay Griffiths’ excellent piece in Zen and the Art of Legal Networking came up on my radar last week by way of our mutual blogging platform, Lexblog.  She highlighted the 2016 Altman Weil Law Firms in Transition report and, more pertinent to my conversation with Mr. IBFP, AW’s latest Chief Legal Officer Survey.

The recurring theme in both (not to boil everything down too much):  law firms are still not efficient, and their clients (especially corporate clients) want them to be.  CLOs take their business elsewhere or they move it back in-house because the old cost model (read: billable hours) just ain’t working for them anymore.

But back to Mr. IBFP, who is not that stodgy old grouch who could’ve clerked for Clarence Darrow, who regards the billable hour as sacrosanct, and who still can’t cotton to women in the profession.

Lexblog desperately needs a sarcasm font.
Lexblog desperately needs a sarcasm font.

This fellow is comparatively young, still very much in the game, and very much aware of the pressures all firms are facing.  I’m pretty confident that he meant he wants his litigators to handle things internally if they can.  That would make perfect sense, really.

But here’s my sales pitch, which extends beyond just what I do…

When you need to serve process or compel evidence production in a different country, you’ve got to call me.  Or call one of my competitors.  Just call somebody.  When you have an issue on your desk that will require a massive amount of new learning to get it right, call somebody.  When you are completely out of your element, call somebody.

Of course, the first somebody is the wise old sage down the hall (not the misogynistic Harumpf guy up there^^^).  Use internal resources first—Mr. IBFP was absolutely correct about that.  But the sage may not know, and might just tell you to call somebody like me.

To be sure, much of what I do is billed hourly—my gripe here is not with the billable hour.  In fact, I still think it’s as fair a way to gauge legal work as any.  My gripe is with the persistent belief that bills, rather than client benefit, must be maximized.  Client dissatisfaction shouldn’t strike fear in the hearts of the IBFPs of the world.  It should, however, spark a new way of looking at client service, and create a golden opportunity to forge lasting relationships.  By harnessing the efficiency offered by technology, outsourcing, AFAs… those clients will stick around, and over time will be worth far more than that ten-hour bill.

So here’s hoping Mr. IBFP calls me for a consult.  I’d really like to show that guy what I can do.

 

Do Not Pass Go

My BusOrg professor in law school was a bigtime Boston Red Sox fan.  We didn’t hold it against him at the University of Missouri-Kansas City, because we sort of knew the pain Sox fans had felt for so long (they went 86 years between World Series titles; the Royals only went thirty, but still).  Big Tony* was an entertaining fellow with a biting wit, and he drove home some very important points about how to handle business law.  The most important (read: basic) lesson he taught us applies just as much to litigation as to corporate governance… get the company name right.

Name the correct foreign entity
Lots of juniors in the entertainment world…

My variation goes something like this:  say you’re suing a guy named Harry Connick.  Which one?  Senior or junior?  It will matter, I promise you, because the senior is the former (longtime) D.A. in New Orleans, and he knows litigation, pal.  Hoo boy, he knows how to litigate.  Junior didn’t go as far.  He’s just a saloon piano player nobody’s ever heard of, but thanks to the old man, he knows some really top flight lawyers who also know how to litigate.  If you tag the wrong one in the lawsuit, you have a tough road ahead of you.

If you’re suing PwC because they goofed on your taxes, you’re not going to sue Price Water House, Inc.  If you do it correctly, you’re going to sue Pricewaterhouse Coopers LLP.  That’s the correct entity.  Price Water House, Inc. does not exist, so your suit is going nowhere.

Okay, sure, PwC is going to enter the suit anyway—and score some points with the judge in the process by not making her deal with a silly issue—but, bottom line, make sure the right name is on the other side of the V.

If your defendant is a foreign entity, it’s even more critical that you properly name it in the suit.**

Don’t call it a Aktiengesellschaft (AG) when it’s really a Gesellschaft mit beschränkter Haftung (GmbH).  In German, that’s the difference between a corporation (Inc./Corp.) and a Limited Liability Company (LLC).  The distinction applies in Germany, Austria, and eastern Switzerland.

Don’t call it a Société anonyme (S.A.) when you really mean a Société à responsabilité limitée (SàRL).  Same analogy, but in French.  Applies in France, Belgium, western Switzerland…

Why does this matter, if the defendant is going to approach the situation like Pricewaterhouse and appear despite your error?

Because service of process abroad won’t be effected if you misname the defendant.  Here in the U.S. (and maybe Canada), they aren’t going to quibble if you get it close.  Outside the U.S., you’ll have a problem if you name an entity defendant that does not exist—the government authority that serves documents won’t even process your request.  And yes, they do check.  You’ll get a tersely worded note that says “that defendant is not in our registry.”

In short, do not pass Go, do not collect $200, counsel.  You’re back to square one.  And you’re out all of the time & money you spent in the attempt.  So, properly investigate your defendant ahead of time—even better, thoroughly investigate potential business partners during due diligence.

Sox* Gratuitous Red Sox logo just for Tony Luppino, whose tutelage in business law made corporate structures a whole lot less inscrutable.

** I have to look them up all the time.  Check out this really top-flight Wiki on on various entity types around the world.

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

CRITICAL to note at the outset:

  • You cannot simply serve a subpoena and expect it to work.  Whether it’s a U.S.D.C. subpoena to serve abroad, or a sister-state subpoena to serve in Missouri, mere service does nothing for you.
  • As of summer 2020, Viking Advocates has suspended work in evidence compulsion, but we can happily refer clients to Ted Folkman, who publishes Letters Blogatory and has a wealth of experience in cross-border litigation procedure, not least of which is authoring the evidence chapter of the ABA’s cross-border litigation deskbook.  Ted can be reached via his firm’s website here.  Seriously– if you call our office for help in serving a subpoena, we’re going to send you his way.
  • The Hague Conference has published a highly anticipated Guide to Good Practice on the use of video-links in cross-border depositions.  Handy stuff, and available for no cost in PDF form here.

Now, on with the show…

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 1970 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.  Pretty straightforward, right?

Wrong.  Subpoenas are not “Judicial (or) Extrajudicial Documents” for the purposes of the Service Convention– at least, not with any teeth.  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 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.  It turns out that Ireland operates similarly.  Japan is also not party to the Evidence Convention, and it’s a very tough nut to crack regardless.

Carrots
Image by "Kander" via Wikimedia Commons.

Here is yet another post in our “How to Avoid Having to Hire Us” series.  Depending on your perspective, though, it could be viewed as “How to Recover the Fees You Pay Us” instead.

Frankly, I prefer the latter.  In this installment, we explore how to get the defendant to waive service or, looking at it from another angle, why a foreign defendant ought to waive.  [This pertains to federal suits, where service of process is governed by FRCP 4, found in its entirety here.]

The best way to avoid procedural headaches and the significant cost of serving abroad?  Ask the defendant to waive service.  Don’t get them to accept service—get them to waive.  Take a carrot & stick approach if need be, because with a waiver, everybody wins—the plaintiff avoids a hassle, the judge has one less issue to deal with on her docket, and the defendant can count on some much-needed grace from the judge later on.

The Carrot, 4(d)(3)

The upside to a waiver: extra time.  An ordinary civil summons requires a defendant in Paris to answer a complaint within 21 days of service, whether it’s the Paris in Texas or the one in France.  But if the U.S. defendant waives service, he gets sixty days, while the foreign defendant gets a full ninety days to answer.  Three months instead of three weeks… a handy negotiating tool when opposing counsel is on the phone telling you his client won’t authorize him to play ball.

The Stick, 4(d)(2)

Two downsides to a refusal: (1) a perturbed/annoyed/frustrated judge, and (2) fee-shifting, resulting in no small part from the judge’s perturbation.  The court has to assess fees to U.S. defendants who refuse a waiver—not only the fees to effect service, but also the cost for counsel to write and submit a motion to collect those fees.*

Important to note: the fact that a judge isn’t compelled to shift fees to foreign defendants doesn’t mean she can’t shift fees to foreign defendants.  The tool is available to plaintiffs, but it is very rarely used (I welcome readers’ thoughts as to why that is).  A bit of analysis is in order to support my contention that it can (and should) be done…

Rule 4(d)

Rule 4(d)(1) compels defendants to prevent the unnecessary expenses of serving process.  That means all defendants, without qualification.  And unless they can demonstrate a darned good basis for refusal, they have to reimburse the cost to serve them.

This fee-shifting is mandatory for U.S. defendants, as is clear from the plain language of 4(d)(2).   Less clear is how fee-shifting applies to foreign defendants.  For reasons not entirely fleshed out in the Advisory Committee Notes, 4(d)(2) doesn’t address the issue as to foreigners.  Arguably, it might seem to proscribe such fee-shifting by omission, and one statement in the 1993 Notes indicates that foreigners need not show good cause.  This argument is undermined by two ideas:  (1) the extra month offered to foreigners who waive, and (2) the extra time allowed for reply to a waiver request, as set forth in 4(d)(1)(F).  Moreover, the ’93 Notes go into significant detail as to why a foreign defendant is just as obliged as a U.S. defendant to avoid forcing a plaintiff to spend unnecessarily.  They even suggest that foreigners are even more obliged to waive in light of the significantly higher costs of serving them.

Serving process domestically isn’t that costly—a hundred bucks to a process server or local sheriff will usually do the trick.  But the bill for service abroad can reach the five-figure range, especially where pleadings are quite lengthy (e.g.: patent litigation) and must be translated.

If Apple, Inc. is accused of patent infringement, service is pretty simple and pretty cheap.   But if Samsung or LG are accused of the same infringement, the cost to serve them in Korea is astronomical.  Translation of a patent in the consumer electronics world can run into tens of thousands of dollars.  Likewise, serving GM or Ford in a product defect action is inexpensive and fairly straightforward.  But such an action against Volkswagen or BMW in Germany, Toyota or Honda in Japan, Hyundai or Kia in Korea… again, thousands of dollars.

All of these defendants profit significantly from the U.S. market, yet are the foreigners immune from the obligations placed on U.S. companies?  Highly doubtful that a judge would see it that way.

That 4(d)(2) identifies only U.S. defendants results from very confused diplomatic pressure by the United Kingdom, as detailed in Brockmeyer v. May, 383 F. 3d 798 (9th Cir., 2004) (begin at 807 for a bit of a lark).**  A conclusion that fees simply cannot be assessed to defendants who refuse to waive is flat wrong, and the ’93 Notes bear this out by describing specific conditions under which they should be excused.  Brockmeyer seems to say—in dicta, admittedly—that foreign defendants bear the same duty, and are therefore subject to the same penalty for refusal, as domestic defendants.

Policy

The reason underpinning the fee-shifting rule is simple: even contentious litigation must proceed under a certain code of conduct, lest the docket be unnecessarily clogged and the cost of litigation exceed already stratospheric levels.  As part of that code of conduct, parties are expected to concede certain inevitabilities; among them is the certainty that they will be served eventually, so making the plaintiff jump through flaming hoops is, at best, churlish.

My wife, Peggy, articulates this idea much more succinctly: Don’t Be a Jerk.  (And when I’m a jerk, this happens.)

Now, Peggy is a world-class expert in dispute resolution (seriously—she aced a master’s program in the field at a Jesuit school, and those Jesuit guys are hardcore).  She will argue until she’s blue in the face that a suitable resolution is far more likely if grown-ups act like grown-ups.  If a defendant is recalcitrant and refuses to waive service merely because they can refuse, it’s going to be a long, cold, lonely winter.  I’ll leave civility arguments to more learned colleagues, but it seems awfully clear that if a defendant is unwilling to waive service, they will probably be just as unwilling to fight under Queensberry rules after the opening bell.  Nobody on either side should expect the grace of an extra few days on a pleading deadline.

But it does not have to be that way.  If you’re defense counsel, I urge you to simply waive if the plaintiff asks nicely.  (On the other hand, if they proceed straight to service, let me take a look at it to ensure that it’s solid!)

Push the Issue, But Only If You Can Enforce a Judgment Here

The bottom line if you’re plaintiff’s counsel: ask for a waiver, following the steps outlined in 4(d)(1).  If they ignore or refuse your request, hire somebody to have service effected (or if you must, handle it yourself, but still outsource the translation), and then move for fee-shifting!  There is no reason that your client should bear the cost of serving a defendant who is obliged to avoid that cost in the first place.

Of course, tread lightly.  In light of the confused British objection, which I imagine would be joined by any number of other countries, plaintiffs may be wise to assert their right to fee-shifting only if the defendant has assets here in the United States.  If you have to go abroad to collect, you are better off eating the cost to serve, and collecting only on the judgment itself.

 

* Oddly enough, I’ve never had anybody take me up on my suggestion that they recoup my fees from a defendant who refused to waive.  Heck, I’ll even write the motion.

** Brockmeyer, incidentally, is part of a significant circuit split over the issue of mail service under the Hague Service Convention.  I insist that the Brockmeyer court got it wrong, rather than following Ackermann v. Levine (2d Cir., 1989).  Although Hague mail service is a bad idea, it’s legally valid, as I predict the Nine Eight Wise Souls will hold very soon.

UPDATE, May, 2017:  Brockmeyer has been overturned— unanimously– at least as far as its prohibition on Hague mail service is concerned.  That holding is no longer good law, but the dicta are still informative.

 

 

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 probate lawyer, I’ll never need to serve anybody in a foreign country.  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 Boromir into your slide deck!

Seriously.
This is Boromir.  It is not Ned Stark.

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever have an intestate decedent?  (Yes.)  Ever need to serve his heirs?  (Yes.)  Think he might have a cousin or two in the old country?  (Hmmmm.)  Bear with me here…

It doesn’t matter what court is handling the probate, and it doesn’t matter if the judge is certifiably nuts and is sick of all your service of process jibber jabber.

Quick war story here:  probate lawyer calls me a couple of years ago and says, “I’ve got a guy with a million dollars in land and a collection of antique tractors, but no kids, no wife, no siblings… and no will.”

Wow, I thought.  Somebody’s about to get a happy gram about Cousin Stan.

Turns out that Stan was short for Stanislaw.  Stan was a Polish immigrant who came to America after the war and made a pretty good go of it.  But he never got married, and had precisely zero family in America.  The internet is a wonderful thing, however, so the estate’s court-appointed lawyer found out pretty easily that Stan had elderly three sisters in Poland.  Not one of them spoke English, so they didn’t respond to the lawyer’s letters.

“How do I serve them?” he asks.

Pretty straightforward, I replied.  We send a request to the Justice Ministry in Warsaw (Poland’s Hague Central Authority), and they take it from there.  It was all wrapped up in about three months; the judge was happy, the elderly sisters had a nest egg, and Stanislaw was a local hero in his old village.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures trump lesser laws.  A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

Judge_Sanders
Judge Sanders does not tolerate jibber jabber.  Or poopycock, for that matter.

In short, if the judge raises a stink that it’s taking too long, tell the judge that James Madison & Alexander Hamilton said he should give you a break.

Unless he’s a lunatic, like this guy —>