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 the 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.
While the Hague Evidence Convention determines whether the subpoena served abroad is transmitted via the Convention or letters rogatory, the procedure is roughly the same. The documents that need to be served are transmitted by a specific method to the receiving country. The receiving country is then obligated to fulfill service only by a local court with the jurisdiction to complete it while also adhering to internal laws. Inside the US, obtaining evidence under the Evidence Convention can be compared to comity.
What differentiates a subpoena abroad from a domestic subpoena is language. This is perhaps also the reason why a subpoena must be translated to the receiving country’s language before transmission. The tone of a subpoena abroad needs to be conciliatory and cannot use demanding lingo that is customary in a domestic document. It is important to outline exactly how the evidence will be used in a way to convince the receiving country as to the importance of the request.
The Convention establishes a procedure for a designated ‘central authority’ to receive and review incoming letters of request to obtain evidence and to determine compliance with the requirements of the Convention. If compliant, the Central Authority then transmits the letter of request ‘to the authority competent to execute’ it, usually a court. The judicial authority that executes a letter of request applies its own law as to the methods and procedures for executing the letter of request. Both the Hague Evidence Convention and the Letter Rogatory require the US forum judge be the individual to execute the request for judicial assistance, which means that the first step in acquiring said subpoena is putting forward an application or motion to the court, regardless of the method that is actually being used to obtain the evidence abroad.
The next step after this is the forum court hearing, conducted immediately after it receives a motion to execute the Request for International Judicial Assistance. The opposing counsel can thus have a chance every step of the way to quash parts of the request and is encouraged to do so as the hearing is tantamount to gauging the validity of the subpoena by itself. If it does not hold water before transmission abroad, there seems little value in sending the subpoena request only to be rejected at a later date following a much longer process. Since this argument to quash the request is prevalent, some grounds for the same may be [A.] that the request is irrelevant or [B.] that it exceeds the discovery limits permitted, [C.] that it imposes a greater burden on the witness, or falls within the scope of privileged information or [D.] that it is unreasonably long and cannot adhere to the time limits established by the court for discovery.
Once the forum hearing has been cleared, attorneys are required to transmit the Request to the ‘appropriate judicial authority’ in the receiving country. The Hague Evidence Convention allows for a designated Central Authority in signatory countries, so the cleared subpoena request will be directed therein. If the country is not a signatory, the letter rogatory is transmitted through diplomatic channels.
Once the letter is received, the foreign court must evaluate the relevance of the request. If judged to be relevant while complying with internal laws and following the requirements of justice, the request is granted by the court and a date for execution may be assigned. If adjudged to be entirely unreasonable, the court can dismiss the execution.
There is a third course of action, however. If the court bears reservation to the request for evidence, a second formal hearing might be held, this time in the receiving court. The purpose of this hearing is to see whether the request may still be granted but to go ahead with this, the help of a local counsel may have to be chartered. If the hearing goes well and the request is deemed acceptable, the date of execution may be ideated.
What is the date of execution?
The date of production of evidence is the date of execution. Documentary evidence means the date of execution is when the documents are to be shipped to the requesting authority while the date of execution for a deposition is the date when the witness is examined by the requesting authority.
It is hard to pinpoint a specific date of execution for a foreign subpoena. Letters rogatory take a significant period of time and go through a long set of channels. Consequently, for letters rogatory, the foreign judicial authority usually sets the date. Signatories to the Hague Evidence Convention usually set a date within a few months of the request arrival in the receiving country. It must be noted here, however, that a few countries do allow evidence to be taken from voluntary witnesses, though the restrictions surrounding the same vary drastically across countries.
What the Hague Evidence Convention seeks to achieve is to [A.] ’improve the existing system of Letters of the request [B.] enlarge the devices for the taking of evidence by increasing the powers of consuls and by introducing, on a limited basis, the concept of the commissioner; and at the same time [C.] preserve all existing more favorable and less restrictive practices resulting from internal law, internal rules of procedure and bilateral or multilateral conventions’
Understanding the Hague evidence Convention is key. Articles 1-14 regulate the form of the Letter, the scope of its content, the methods of transmission, the language to be used, the method and technique of execution, the compulsion to be exercised against a witness, the privileges and immunities of the witness, the permissible grounds for a refusal to execute the letter, and the question of costs and expenses.
Following this, article 15-22 identify the consuls/commissioners’ rules in taking evidence, understanding the role of the State in compelling the producing of the evidence as well. It also provides alternatives to the consul if they are unable to respond in time or deny the provision of evidence. The later articles, 23-42, merely provide general clauses for identifying the relationship between past Conventions and the authorities designated under Articles.
The Convention specifically provides under its ambit that the person requested to give evidence does not need to provide the same if their hands are tied by the receiving state. For that matter, the request for evidence cannot be executed if the person has a duty to refuse the evidence from the originating state as well. This holds true only if the execution of the Letter does not fall within the functions of the judiciary in the state of origin or infringes on the sovereignty or security of the addressed state.
[3.0] SERVING A SUBPOENA TO AN AMERICAN ABROAD
A subpoena may be served on a U.S. citizen, national, or permanent resident pursuant to 28 U.S.C. §1783 and Fed. R. Civ. P. 45. US citizens and residents are obligated to respond to subpoenas issued by US judicial authorities. Such service is undertaken by U.S. consular officers. However, this is inappropriate for any individual who is not an American citizen or a resident and is sufficient grounds to refuse or quash the subpoena if the condition is not met.
Before obtaining the subpoena, it is necessary to determine the absolute necessity of the testimony in question for the case as well as whether it’s possible to admit the testimony through any other means. It must be proven that the evidence is impractical if not delivered by the witness themselves and that the evidence in itself falls within just standards. Consequently, the subpoena’s relevance and practicability need to be evaluated before being set forth.
A subpoena might be an integral part of any case and a vouchsafe for due process, but a foreign subpoena is a mire of complications specific to each country. Countries impose different formalities, some even allowing voluntary witness evidence. However, obtaining a subpoena from countries with a highly formalistic view of the evidence as a judicial function can cause issues in the case, requiring concise and delicate handling.
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1.Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, or the Hague Evidence Convention, 18th March 1970
2.Article 2: A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organize the Central Authority in accordance with its own law.
Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.
The judicial authority, which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.
However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.
A Letter of Request shall be executed expeditiously.
5.EXPLANATORY REPORT ON THE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS by Ph.W. Amram
6.Article 11: In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence
a) under the law of the State of execution; or
b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.
A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.
7.28 U.S. Code § 1783.Subpoena of person in foreign country
8.Fed R. Civ. P5.(b) Service.
(3) Service in a Foreign Country. 28 U.S.C. §1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country