07May
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In law, the devil truly is in the details, and frequently these details amount to a difference between what a judge orders and the real world’s ability to comply with that order.

At Legal Language Services we recently came up against one such incident when we were contacted by a client who had been ordered by a court to serve a subpoena on an independent third-party (TP) witness located in China. Importantly, the court ordered that the service of the subpoena be pursuant to the Hague Service Convention (HSC) rather than the Hague Evidence Convention (HEC).

Several inherent details frustrate the execution of this court order. Read on to learn about the barriers that exist to serving a subpoena in China via the HSC and why serving a subpoena via the HEC is the gold standard.

1. Supportive case law is not applicable.

Because FRCP 45 does not explain what constitutes service of subpoena upon a witness in a foreign country, federal courts look to Rule 4(h)(2) and Rule 4(f) for guidance on service abroad.[1] Hence in Aristocrat Leisure, following this procedure, the court ordered service of a subpoena upon a witness in the United Kingdom via mail citing Article 10(a) of the HSC.[2]

This case (and others like it[3]) does not comply with China’s declarations and reservations to the HSC. Unlike the UK, which allows mail service from the United States, China has prohibited service by mail from the US.[4] Thus, mail service from the US to China is not proper.[5]

Another reason Aristocrat Leisure and similar cases[6] are not helpful when considering the requested court order at hand involves agency. In these cases, the court that ordered a subpoena be served upon an overseas entity via the HSC did so because the TP witness was deemed an agent of one of the parties to the litigation. Accordingly, because one of the parties to the litigation had sufficient control over the witness, the witness was compelled to produce evidence.[7]

In the case assessed by LLS, an agency relationship did not exist between the parties to the litigation and the TP witness. Thus the court has no leverage over the witness in this case.

2. The HSC is not a vehicle for taking evidence.

The preamble of the HSC sets out its scope: The HSC covers “judicial and extrajudicial documents to be served abroad.” Because the term “documents” is not defined by the HSC, at first blush a subpoena could reasonably seem to be a judicial document. Indeed, some US courts have taken this point of view.[8] However, both Conventions (HSC and HEC) adhere to the principle that lex fori controls what a Central Authority does or does not do.

So, just because a US court deems a document suitable to be transmitted via the HSC does not mean the Chinese Central Authority (or for that matter any overseas Central Authority) will hold the same view.

In practice, requests to take evidence are to be made pursuant to the HEC.[9] When requests for evidence (e.g., interrogatories) are included with service of process under the HSC, Central Authorities will routinely reject those services for noncompliance with the HSC. Even the US Central Authority will not process requests for evidence made pursuant to the HSC. So, why should a US court assume the Chinese Central Authority will process a request for taking evidence from a US court made pursuant to the HSC?

Indeed, the Chinese Central Authority will not process such a request – even though the HSC and HEC Chinese Central Authority are currently identical (down to address and contact administrators).

The Chinese Central Authority processes requests for service and evidence differently. Requests for service under the HSC can be sent directly from a US attorney to the Chinese Central Authority. On the other hand, requests for taking evidence under the HEC are sent to the Chinese Central Authority through the US Central Authority.[10]

Herein is yet another barrier to serving a subpoena in China via the HSC. Under the HEC, evidence is taken pursuant to a Letter of Request,[11] not a subpoena. Accordingly, without a Letter of Request from a trial court, the notion that the US Central Authority would sign off on a mere subpoena of a TP witness in China strains credibility.

3. Service by HSC requires more time.

The need to have a request to take evidence in China pass through the US Central Authority also brings up some practical issues concerning formal document delivery in China.

If US litigation has entered the time-limited discovery phase, time to serve becomes critical. HSC service of documents in China will not occur for a year (or more) after the Chinese Central Authority has received a request for service. On the other hand, if the Chinese judicial system will execute a Letter of Request under the HEC, it will most likely do so within 3-6 months after the Chinese Central Authority receives the Letter of Request.[12]

So, when it comes to taking evidence, service by the HEC is much faster.

4. US courts do not have proper jurisdiction over the witness.

Now let’s assume that by some miracle a subpoena is serviced upon a Chinese witness via the HSC. The power behind a subpoena is found in a contempt of court proceeding. But before a court can hear any contempt proceeding, it must first have jurisdiction.

During the last decade, the US Supreme Court has severely narrowed the scope of personal jurisdiction.[13] In light of these cases, it is clear that if the witness is an individual person residing in China — absent a lot of purposeful contact with the US — a US court almost certainly would not have jurisdiction.

Moreover, the “at home” standard for courts to have jurisdiction over foreign corporations means that US courts are also very unlikely to have jurisdiction over a Chinese corporate TP witness absent a finding of some form of agency or intentional global reach of the corporation. Since US courts cannot enforce a subpoena through a contempt proceeding on an independent Chinese TP witness, why would the witness comply with the subpoena?

On the other hand, if a request for evidence is submitted from a US court to the appropriate court in China via the HEC, that court will have jurisdiction over the Chinese witness. There is no guarantee that a Chinese court will order the evidence requested in a Letter of Request be produced, but at least there is a possibility of obtaining evidence when requested pursuant to the HEC. In contrast, because the devil is in the details, transmittal of a subpoena to a TP witness in China pursuant to the HSC is not only costly, but also highly inefficient.  

LLS Can Help

At LLS, we have more than 30 years experience serving subpoenas abroad. If you require assistance, contact us today.

Call us at 1-800-788-0450 or simply fill out our free quote form.

Notes

[1] Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas,  262 F.R.D. 293, 307 (S.D.N.Y. 2009).
[2] Id. citing IM Partners v. Debit Direct Ltd., 394 F. Supp. 2d 503, 511-12 (D. Conn. Sept. 29, 2005); G.A. Modefine, S.A. v. Burlington Coat Factory Warehouse Corp., 164 F.R.D. 24, 25 (S.D.N.Y. 1995); and Ackermann v. Levine, 788 F.2d 830, 839 (2d Cir. 1986).
[3] For example, see Lubahn v. Absolute Software, 2017 WL 6461863, at *3 (E.D. Mich. Dec. 19, 2017).
[4] HCCH: [China’s] Declaration/Reservation/Notification; https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=393&disp=resdn
[5] Water Splash, Inc. v. Menon, 581 US ___ (2017).
[6] Alexander Interactive, Inc. v. Adorama, Inc., 2013 WL 6283511, at *8 (S.D.N.Y. Dec. 4, 2013); In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 195 (S.D.N.Y. 2007), aff’d sub nom. Gordon Partners v. Blumenthal, No. 02 Civ. 7377, 2007 WL 1518632 (S.D.N.Y. May 17, 2007); and  Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y. 1992).
[7] In this one extreme case, the court ruled that it had jurisdiction over the witness. See Gucci Am., Inc. v. Weixing Li, 2011 WL 6156936, at *7 (S.D.N.Y. Aug. 23, 2011), vacated on other grounds, 768 F.3d 122 (2d Cir. 2014).
[8] TracFone Wireless, Inc. v. Does, 2011 WL 4711458, at *4 (S.D. Fla. Oct. 4, 2011).
[9] HCCH: Practical Handbook on the Operation of the Hague Service Convention, 3rd Ed. (2006).
[10] HCCH: China – Central Authority (Art. 2) and practical information; https://www.hcch.net/en/states/authorities/details3/?aid=490
[11] A Letter for Request has to assert that a trial is imminent. See HEC Article 1 and 23. This is another detail that not usually included in a subpoena.
[12] This sentence is written this way because the Chinese Central Authority only orders a small percentage of Letters of Request to be executed. Requests to take depositions in China are almost never granted. (See Dan Harris: Disputes with Chinese Companies. Harris Bricken, September 5, 2018; https://harrisbricken.com/blog/disputes-with-chinese-companies/; cf. this does not mean that requests for witnesses to be examined by the Chinese Judiciary are rarely granted.) When China elects not to execute a Letter of Request, almost always, the Chinese Central Authority simply does not respond to the Letter.
[13] BristolMyers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017); Daimler AG v. Bauman, 571 US 117 (2014); Walden v. Fiore, 134 S. Ct. 1115(2014); and Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915 (2011).


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