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How Federal Subpoenas Are Served to Targets Overseas
How Federal Subpoenas Are Served to Targets Overseas
When attorneys in the United States need to obtain testimony or documents from an individual or company located overseas, they often turn to federal subpoenas. However, serving subpoenas abroad comes with unique legal and logistical challenges.
What is a Subpoena?
A subpoena is a writ issued by a court to compel a witness to appear and give testimony or produce documents. Subpoenas are commonly used during the discovery phase of litigation to obtain evidence from third parties. They can also be used to compel testimony from uncooperative witnesses.
Federal subpoenas are issued under Rule 45 of the Federal Rules of Civil Procedure. They can require the recipient to produce documents, appear at a deposition, or testify at a hearing or trial. Failure to comply with a subpoena can result in sanctions for contempt of court.
Serving Subpoenas Within the U.S.
When a subpoena is directed at an individual or company located within the United States, the process for serving it is straightforward. Rule 45 states that a federal subpoena may be served anywhere in the U.S. [1]. To serve a subpoena domestically, an attorney engages a process server who personally delivers it to the recipient. Proof of service is filed with the court through a statement certifying the date and manner of service.
Challenges of International Service
Serving a subpoena on a target located overseas, however, is much more complicated. Rule 45 does not authorize federal courts to serve subpoenas abroad. Instead, attorneys have to rely on various international agreements and domestic statutes that permit foreign service of subpoenas in limited circumstances.
Even when foreign service is allowed, there are logistical difficulties. The subpoena may need to be translated into the language of the country where it’s being served. It may also need to be revised to conform to local laws. Arrangements need to be made with local officials or private process servers in the foreign country to actually deliver the subpoena.
Foreign governments and courts are under no obligation to assist with service of U.S. subpoenas unless required by treaty. Even friendly foreign governments may be unable or unwilling to serve a subpoena that does not comply with local laws. Attempting to serve a subpoena that violates foreign laws can damage international relations.
Methods for Serving Subpoenas Abroad
There are three main mechanisms attorneys can use to serve subpoenas overseas:
- Letters Rogatory
- The Hague Evidence Convention
- The Walsh Act
Letters Rogatory
Letters rogatory (or letters of request) are formal requests from a U.S. court to a foreign court asking for assistance in obtaining evidence. To serve a subpoena via letters rogatory, an attorney petitions the federal court hearing the case to issue the letters. The letters are transmitted through diplomatic channels to the foreign court with a request to compel the witness to appear or produce documents.
The other country may or may not honor letters rogatory. Complying is merely a matter of comity rather than legal obligation. Judges have discretion over whether to assist. Even if the foreign court agrees to execute the request, the process is cumbersome and can take many months.
The Hague Evidence Convention
The Hague Convention on Taking Evidence Abroad in Civil and Commercial Matters is a multilateral treaty that provides procedures for obtaining evidence from a signatory country. There are currently 61 member states. To serve a subpoena via the Hague Convention, the attorney files a Letter of Request with the federal court. This document goes through the U.S. State Department to the central authority designated by the country where the subpoena will be served. Once executed, the documents are returned via the same channels.
The Hague Convention imposes requirements such as translating subpoenas into the foreign country’s language. It also provides mechanisms for recipients to raise objections and assert privileges. However, member countries are obligated to execute compliant requests in a timely manner. So while slower than domestic service, it is more reliable than letters rogatory.
The Walsh Act
The Walsh Act, 28 U.S.C. §1783, allows federal courts to issue subpoenas to U.S. citizens and residents abroad if the evidence sought is “necessary in the interest of justice” and not obtainable through other means. Attorneys petition the court to issue the subpoena, then arrange for service using the same channels as letters rogatory.
The Walsh Act has been used more in criminal cases, but applies to some civil litigation. However, its “necessary in the interests of justice” standard means courts don’t authorize these subpoenas routinely. Also, since the recipient must be a U.S. citizen or resident, it has limited applicability in international disputes.
Practical and Legal Considerations
When serving federal subpoenas abroad, attorneys also need to consider:
- Whether the discovery sought is relevant and narrowly tailored. Overly broad subpoenas face objections.
- Local laws on privacy, data transfer, and blocking statutes that prohibit certain disclosures.
- Determining the proper foreign court or authority to receive letters rogatory or Hague Convention requests.
- Who will pay associated costs like translation services.
- How much time the process will take.
Parties trying to avoid compliance may argue the foreign jurisdiction lacks authority over them or raise privileges and immunities under foreign law. Courts analyzing these defenses consider factors like applicable treaties and conventions.