Understanding International Discovery
The greatest challenge in obtaining evidence abroad is knowing whether, or not, to utilize the provisions of the Hague Evidence Convention[1]. Understanding international discovery processes is vital in moving your international case forward. While it is a tricky endeavor, the solution is quite simple: Hire an expert!
Let’s start with the basics. If you wish to serve a summons, citation, notice, or other originating document in a foreign jurisdiction, you utilize the provisions of pertinent treaties, such as the Hague Service Convention,[2] or the Inter-American Convention on Letters Rogatory, or use a private process server, where applicable.
However, when serving a subpoena or other discovery documents, the Hague Service Convention and other related treaties do not apply.
Think of it this way: A summons or citation has the purpose of giving notice to the defendant of their basic rights and responsibilities, while a subpoena is a request to obtain evidence – basic law school doctrines. So, why is it so confusing? Please allow me to explain.
A subpoena cannot just be simply served in a foreign country. As a matter of fact, a subpoena cannot be served in another state or province without following the rules of civil procedure. For example, a subpoena issued in California courts requires a “Commission” if it is to be served in the state of Florida[3].
At the international level, there are no state or province statutes setting forth the rules for service of a subpoena in other countries. Enter now the Hague Evidence Convention.
For service of process in a nation that is a signatory to the Convention, a Letter of Request[4] is used. As with Letters Rogatory, it is a request from the court of jurisdiction to the court of destination seeking judicial assistance in getting a document served. The only real difference is that it doesn’t have to be conveyed through diplomatic channels to the court in the foreign country.
Here is where the real challenge comes into play. The subpoena language cannot contain a demanding tone that is common in U.S. and Canadian[5] subpoenas. It is crucial to avoid such words as “demand” or “required to” or “commanded to.” Careful drafting of both the subpoena and Letter of Request is critical; otherwise, the entire service exercise is a vast waste of time and resources.
There are other considerations to be considered when drafting the subpoena and Letter of Request:
- Remove phrases which are broad and general, such as “any and all.” Most foreign jurisdictions do not allow for broad “fishing expeditions” and require very specific wording in the request. You must make it abundantly clear as to the information, or documents, that you seek. Example: Rather than requesting “any and all correspondence between your employees in the year 2021,” state “a hard copy of all emails between employee, John Smith, and CEO Barbara Jones between January 1, 2021 and December 31, 2021, related to the Acme merger.”
- Make it clear as to how the evidence will be used at trial. It will not work to state that you hope the evidence will lead to other evidence, or that you suspect that it might be relevant. You must say that you need it to impeach a specific witness’ anticipated testimony, or that it is a critical element of your trial theory.
In summary, service of a subpoena should be in compliance with an appropriate treaty, or in the absence of a treaty, service by private process server.
You may wonder if service by a private process server is enforceable. The answer is “no.” However, if service by the treaty method is not complied with, there is no practical method to enforce compliance. The bottom line is non-compliance leaves no realistic means of enforcement.
Finally, the complex nature of serving a discovery request, such as a subpoena, can be made simple by consulting with an international service of process expert.
[1] Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
[2] Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, or Inter-American Convention on Letters Rogatory
[3] California Code of Civil Procedure §1985
[4] Letter of Request is a form of Letters Rogatory
[5] Canada is not a signatory to the Hague Evidence Convention. A subpoena is served directly on the witness
