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For many attorneys, service of process and service of a subpoena are analogous processes. True, they are not identical processes: Whereas service of process is only upon a defendant and the clerk of the court signs the summons, the service of a subpoena may be upon a defendant or a third-party witness and is signed by the attorney seeking the evidence.

Nevertheless, there are still many commonalities between service of process and the service of a subpoena in the US including:

  • Service tends to be personal
  • The process server must be over 18 years of age and a non-party to the litigation
  • The fee for service is modest ($50-$100 per serve)
  • Service is usually effected within a few days days

Not surprisingly, attorneys tend to think that the international service of a subpoena should also be analogous to international service of process. In reality, though, the two are quite different.

Defining the Differences Between International Service of Process & International Service of a Subpoena

Service of process is governed by the Hague Service Convention for countries in North America, parts of South America, Western Europe, selected countries in Eastern Europe, Australia, and much of Asia.

Still other countries in the Americas are party to the Inter-American Convention on Letters Rogatory, including the US, Brazil, and Panama. For other countries not party to any treaty, international service of process is effected pursuant to a Letter Rogatory.

Regardless of the method used, the procedure used to effect service pursuant to a Treaty or to a Letter Rogatory is basically the same: The documents to be served (plus translated copies if service is to a non-English speaking country) are transmitted by a prescribed methodology to the destination country where service is effected by a local court that has jurisdiction over the defendant and in accordance with local laws.

In contrast — with one exception discussed below — a subpoena issued by a US court is worthless beyond the territorial borders of the United States.[1] The “subpoena power of a court cannot be more extensive than its jurisdiction.”[2] Given the recent Supreme Court’s adoption of the “at home” standard as the basis for determining jurisdiction,[3] it is doubtful that US courts have jurisdiction over even large foreign multinational corporations, let alone individual foreign witnesses who lack minimum contacts with the US.

Even within the United States, a court “may only compel compliance” of a subpoena “within the state or within 100 miles of where “the person resides, is employed, or regularly transacts business in person.”[4] This is known as “the 100 mile rule.”

The Process of Serving a Subpoena Abroad

Making a Formal Request for Judicial Assistance

In virtually all situations where an attorney seeks to depose an overseas witness or seeks the production of documents in the position, custody, or control of an overseas witness, the attorney will need to make a formal request for judicial assistance. If the witness is located in many (but not all) European countries, Australia, China, India, Korea, or Mexico, a formal request for judicial assistance is made pursuant to the Hague Evidence Convention.

For all other countries (including Canada and Japan) a formal request for judicial assistance is made pursuant to a Letter Rogatory.  Both the Hague Evidence Convention and the Letter Rogatory require that the US forum court judge execute the request for judicial assistance. This means that an application or motion must be made to the court regardless of which method is used to take evidence abroad.

Once it receives a motion to execute the Request for International Judicial Assistance (“Request” or “Letter Rogatory”), the forum court will hold a hearing. Thus, from the start, opposing counsel has the chance to quash all or parts of the Request.

How Opposing Counsel Could Quash the Request

From the judge’s perspective, since the hearing on the Request is tantamount to determining the validity of a subpoena, opposing counsel could argue to have the Request quashed for many reasons. Some grounds for quashing the Letter Rogatory assert that the judicial assistance requested:

  • Is irrelevant[5]
  • Exceeds the discovery limits described under F.R.C.P. 26(b)[6]
  • Imposes an undue burden or expense on the witness[7]
  • Cannot be obtained within the time limits established by the court for discovery
  • Is privileged
  • Would violate the “100-mile” rule described above

Transmitting the Request Abroad

Once the court has executed the Letter Rogatory, it must be translated (if applicable) and then transmitted abroad. Attorneys should transmit the Request to the “appropriate judicial authority” in the country where the witness is located.

If the witness resides in a country party to the Hague Evidence Convention, simply overnight the Request to the appropriate Central Authority. If judicial assistance is being requested via Letter Rogatory, the Letter Rogatory must be transmitted through diplomatic channels for which the Department of State charges a $2275 handling fee.

Once the request for judicial assistance arrives at the appropriate judicial authority, the foreign court has three options for executing the request:

  1. The court may find that requested evidence is relevant, not overbroad, does not violate any local laws, and the interest of justice compels the execution of the request. If all of these conditions are met, the court will grant the request and set a date for execution of the request.
  2. Alternatively, based on the above criteria, the court may find that it is totally unreasonable to order the evidence requested and will refuse to execute the Request.
  3. More likely, the court will have some concerns with the request for evidence and hold a formal hearing. Because of this possibility it is always advisable to retain local counsel. At the conclusion of this hearing, the court may “blue-pencil” the request for evidence and set a date for its execution.

When is the Date of Execution?

The date of execution is the date when the evidence is produced. For documents, the date of execution may be the date by which the documents have to be shipped to the requesting attorney. For a deposition, the date of execution is the date when the witness is to be examined.

In Hague Evidence Convention member countries, the date of execution is usually within a few months of the date the Request arrived abroad, although slower countries may take up to six months. The date of execution of a formal Letter Rogatory is often much longer and is left to the foreign judicial authority’s discretion.

Two Exceptions to the Above Rules

1. Some countries will allow evidence to be taken from voluntary witnesses. In Canada, Mexico, and the United Kingdom, evidence can be taken from a voluntary witness without formality or permission. Other countries, like Switzerland and France, also allow voluntary evidence-taking, however, they do impose some formalities (e.g., depositions must occur at a US consulate or notice must be given to the country’s central authority).

In a small minority of countries, like China, with a strong tradition of viewing evidence-taking as strictly a judicial function, the mere act of contacting a witness to see if she is cooperative may be construed as a criminal act. Accordingly, attorneys contemplating taking evidence from overseas witnesses should familiarize themselves with local laws before contacting the witness.

2. The second exception concerns US citizens and residents living abroad. Like the obligation to pay taxes when they are abroad, US citizens and residents are obligated to respond to subpoenas issued by US judicial authorities.[8] The service of a subpoena upon a US citizen or resident located overseas is authorized by 28 USC §1783; which is explicitly incorporated by reference into F.R.C.P. 45.

Serving a Subpoena on an American Abroad

For individuals living abroad, the issuance of a subpoena under §1783 is inappropriate absent evidence that the target of the subpoena is an American citizen or resident;[9] without such evidence the subpoena should either not be issued or quashed.[10] In addition to the Rule 45 requirements for all subpoenas, case law has imposed two other requirements for issuing a §1783 subpoena to an American citizen or resident living abroad:

  1. The particular testimony is necessary in the “interests of justice;” and
  2. It is not possible to obtain the witness’s testimony in admissible form without his personal appearance.[11]

Under this two-pronged test, the first prong is satisfied if the proponent of the subpoena demonstrates the evidence sought is “relevant under the liberal standards set forth in Federal Rule of Civil Procedure 26(b).”[12]

Under the second prong of this test, the proponent of the subpoena must show that it would be impracticable to obtain the desired evidence by other means as a demonstration of “impossibility is not required.”[13] “The decision to issue a subpoena under this statute is left to the sound discretion of the court.”[14]

An interesting question is how have the courts treated the 100-mile rule when they issue a §1783 subpoena? There is surprisingly little case law to provide guidance. At least one court, in dicta, considered the 100-mile rule a barrier to the issuance of a §1783 subpoena.[15] However, the majority opinion is that the 100-mile rule is not applicable to overseas US citizens and residents.[16]

Taking evidence abroad is complex. Please contact LLS for assistance.

 

 

[1] Relational, LLC v. Hodges, 627 F.3d 668, 673 (7th Cir.2010); United States v. Sindona, 636 F.2d 792, 803 (2d Cir.1980), cert. denied, 451 U.S. 912 (1981); United States v. Drogoul, 1 F.3d 1546, 1553 (11th Cir. 1993) (citing United States v. Farfan-Carreon, 935 F.2d 678, 680 (5th Cir. 1991).

[2] U.S. Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72, 76, 108 S.Ct. 2268, 2270, 101 L.Ed.2d 69, 76 (1988).

[3] Bristol-Myers Squibb Co. v. Superior Court of California, No. 16-466 (U.S. June 19, 2017); BNSF Railway Company v. Tyrrell, No. 16-405 (May 30, 2017); Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014); Walden v. Fiore, 134 S.Ct. 1115 (2014).

[4] NML Capital Ltd. v. The Republic of Argentina, Case No. 2:14-cv-492-RFB-VCF. (D. NV August 11, 2014).

[5] Ireh v. Nassau Univ. Med. Ctr., No. CV 06-09, 2008 U.S. Dist. LEXIS 76583, at *13 (E.D.N.Y. Sept. 17, 2008). (Tomlinson, Mag. J.) (quoting During v. City Univ. of N.Y., No. 05 Civ. 6992, 2006 U.S. Dist. LEXIS 53684, (S.D.N.Y. Aug. 1, 2006)).

[6] Camargo v. Milton Miltiadous, Case No. 14-cv-04490-JSC. ND CA November 6, 2015).

[7] Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 779 (9th Cir. 1994).

[8] Blackmer v. U.S., 284 U.S. 421, 438 (1932). “The jurisdiction of the United States over its absent citizen … is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them.” Id..

[9] NXP B.V. v. Blackberry Limited, Case No. 6:12-cv-498-Orl-YK-TBS. (M.D. FL March 20, 2014).

[10] Camargo, supra note 6.

[11] 28 U.S.C. § 1783(a); Balk v. N.Y. Institute of Tech., 974 F. Supp. 2d 147, 155 (S.D.N.Y. 2013); Rosenruist-Gestao E Servicos LDA v. Virgin Enters. Ltd., 511 F.3d 437, 457 (4th Cir. 2007)  see also MedImmunce, LLC v. PDL Biopharma, Inc., No. C08-05590 JF (HRL), 2010 WL 2179154, at *1 (N.D. Cal. 2010).

[12] Securities & Exch. Comm’n v. Sabhlok, No. C08-04238 CRB(JL), 2009 WL 3561523 *3 (N.D. Cal., Oct. 30, 2009)

[13] Securities & Exch. Comm’n v. Sandifur, No. C05-1631, 2006 WL 3692611 *4 (W.D. Wa., Dec. 11, 2006) citing CSI Inv. Partners II, L.P. v. Cendant Corp., 2006 U.S. Dist. LEXIS 11014 at *14 (S.D.N.Y. 2006)).

[14] Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 523 (D. Col. 2003).

[15] DEB v. Sirva, Case No. 1:13-cv-01245-TWP-DML (SD IN June 6, 2014)(the subpoena was not issued for other reasons other than the 100 mile rule).

[16] Pebble Limited Partnership v. Environmental Protection Agency, No. 3:14-cv-0171-HRH. (D. AK August 27, 2015). NML Capital Ltd. v. The Republic of Argentina, Case No. 2:14-cv-492-RFB-VCF. (D. NV August 11, 2014); GMA Accessories v. Solnicki, No. 07 Civ. 3219 (PKC) (DF). (SD NY September 24, 2010)(in this case the witness was a party to the litigation).

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