By: Akanksha A. Panicker
Depositions, testimony, discovery, and production of records and documents are always a core component of due process and the key to a fair and speedy trial. Mostly, all parties, witnesses, and potential evidence can be sourced in a local manner, is available within the same state. However, when a witness needs to be obtained from another country, a foreign subpoena is issued to compel the testimony or to produce the documents.
The Hague Service Convention makes it simpler to serve documents across countries, but subpoenas do not fall within this bracket. Service of subpoenas cannot technically be served in another country, and goes instead through the Hague Evidence Convention, wherein the process is decidedly more precise, and a little more complex.
Why the difference, then? This can be explained by the fact that subpoenas are mandatory compliance within their own jurisdiction, but once they move past that, they turn into a request. The scope of the subpoena then changes from a demand to a request once they’re outside their jurisdiction. Consequently, how subpoenas act under the Hague Evidence Convention actually corresponds to the process that surrounds service of letters rogatory. In fact, if a country is not a part of the Hague Evidence Convention, then the subpoena is sent through Letter Rogatory like a summons or a complaint.