The case of the day TracFone Wireless, Inc. v. Doe (S.D. Fla. 2011), is one of those rare cases that is so wrong that I hope it does not get into the F. Supp.2d, so as to avoid misleading lawyers.

First, a summary of the case. Tracfone filed a John Doe complaint against unknown defendants supposedly engaged in “an illegal scheme relating to the sale of TracFone mobile telephone airtime.” Its initial discovery efforts gave it reason to believe that one of the John Doe defendants had a bank account with TD Bank. TracFone served a subpoena on TD Bank, but the bank asserted that since it was a Canadian entity, it had to be served in Canada rather than at a US branch. The plaintiff effectively conceded the point and asked the judge to authorize service of the subpoena by international express mail pursuant to Article 10 of the Hague Service Convention. The judge held, first, that Article 10(a) permitted service by mail , second, that Canada had not objected to service by mail, and third, that it was proper to serve the subpoena by mail.

The first holding is correct. I have previously argued that while a minority of American courts have taken the position that the Hague Service Convention does not authorize service of process by mail, the State Department, the Hague Conference, the better-reasoned opinions, and state practice around the world all show that in fact Article 10(a) should be read to apply to service of process as well as service of other judicial and extrajudicial documents.

The second holding is also correct, or at least I think it is correct from a US perspective, but see the discussion I had with Antonin Pribetic, a Canadian lawyer, on the issue of service by mail in Canada.

But the third holding is out in left field. Leave aside the Hague Service Convention issues, and leave aside the question whether it is proper to serve a subpoena by mail. Under Rule 45(b)(2), a subpoena may be served only: (A) within the court’s district; (B) within 100 miles of the place specified for the deposition or the production of documents; (C) elsewhere within the state where the issuing court sits; or (D) at any other place “that the court authorizes on motion and for good cause, if a federal statute so provides. The subpoena TracFone proposed to serve was to issue from the US District Court for the Southern District of Florida, was to be served on TD Bank in Toronto, and commanded production of documents in Miami. It does not come within any of the prongs of Rule 45(b)(2). There is a statute that authorizes service of subpoenas abroad on nationals or residents of the United States, but only if “it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.” It does not seem that TD Bank could even arguably be considered a national or resident of the United States, and because, as we will see in a moment, there is another way to get at the records, TD Bank could not make the required showing of impossibility. So leaving aside any international law issues, the law of the forum does not permit the court in Miami to issue a subpoena to a witness in Toronto.

I will add that while some cases do suggest that it is possible to serve a subpoena by mail, Rule 45(b)(1) requires “delivering a copy [of the subpoena] to the named person.” Most courts hold that this requires personal delivery. But since there is a split of authority on this issue, I can’t say the judge was outright wrong on this point.

The correct way to proceed is by letter rogatory, as Canada is not a party to the Hague Evidence Convention. But the even simpler thing to do, it seems to me, would have been to argue that service on one of TD Bank’s many branches in Miami was sufficient. In any event, it is clear that the judge was wrong to authorize service of a subpoena by mail to Canada, even if nothing in the Hague Service Convention prohibits it. You have to consider the law of the forum as well as the Convention when working through issues like this.