The case of the day is Amaprop Ltd. v. Indiabulls Financial Services Ltd. (S.D.N.Y. 2012). The underlying dispute is probably very complicated and in any case not really relevant for Letters Blogatory purposes. Suffice it to say that Amaprop and Indiabulls had arbitrated a dispute, that the award was in favor of Amaprop in the amount of $48.9 million, and that the New York court had already confirmed the award. Under FRCP 69, the rule governing discovery in aid of execution, Amaprop wanted to serve a subpoena and a restraining notice on Indiabulls. The restraining notice was a post-judgment device peculiar to New York law. Under NY CPLR [section] 5222(a), the restraining notice had to be served “personally in the same manner as a summons.” The same method of service is apparently required for a subpoena under the New York post-judgment procedure.¹It seems to me that the judge could well have asked whether the service of the subpoena complied with FRCP 45, but he didn’t. If he had, the only permissible conclusion, I think, would have been that service of the subpoena abroad was improper. It seems to me clearly improper to send a subpoena, as distinguished from an ordinary discovery request such as a notice of deposition of a party or requests for production of documents, to India, because under FRCP 45(b)(2), the subpoena may only be served within the court’s territorial jurisdiction (with limited exceptions such as the 100-mile “bulge jurisdiction” rule), and may be served abroad only on a United States national under 28 U.S.C. [section] 1783. I wrote about this issue in connection with the Lantheus case, where a US party improperly tried to serve a subpoena in Canada.

Amaprop had served the subpoena and the restraining notice on Indiabulls via overnight mail. It had received the court’s permission to do so. When Amaprop sought to compel Indiabulls to comply with the subpoena and the restraining notice, Indiabulls asserted that the service was improper under the Hague Service Convention.

The judge, incorrectly in my view, held that where the service is to be made in a country that is party to the Hague Service Convention, an order for alternative service under FRCP 4(f)(3) is proper only if the plaintiff has first attempted service via the Convention. To be sure, a judge’s decision under FRCP 4(f)(3) is discretionary, and in particular cases the judge may well conclude that a plaintiff should make use of the Convention before seeking leave to use alternate means. But even if such a decision is within the judge’s discretion, nothing in the rule suggests that a court that does not require first resort to the Convention has erred.

I think the judge reached the right outcome but for maybe the wrong reason. He thought the issue was that the request for leave to make alternative service was premature, but where the Hague Service Convention applies, it’s not at all clear that the court could authorize service that violates the Convention even if service via the Convention fails, because the Convention is exclusive. Instead, the court could order alternative service that does not violate the Convention, e.g., service on the party’s lawyer in the United States; but the court did not consider that kind of possibility here under FRCP 4(f)(3). Instead, somewhat bizzrely, the court held that it was proper to serve the documents on Indiabulls’s US lawyers because, under FRCP 5, documents subsequent to the summons and complaint were to be served on a party’s attorney rather than on the party itself. But if that is so, then what was the point of all of the discussion of service in India?²Also, if we’re in the world of the FRCP rather than quirky New York collections law, a subpoena, under FRCP 45, isn’t served under FRCP 5. I’m just saying. All in all, this is a somewhat odd and unusual case.

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  It seems to me that the judge could well have asked whether the service of the subpoena complied with FRCP 45, but he didn’t. If he had, the only permissible conclusion, I think, would have been that service of the subpoena abroad was improper. It seems to me clearly improper to send a subpoena, as distinguished from an ordinary discovery request such as a notice of deposition of a party or requests for production of documents, to India, because under FRCP 45(b)(2), the subpoena may only be served within the court’s territorial jurisdiction (with limited exceptions such as the 100-mile “bulge jurisdiction” rule), and may be served abroad only on a United States national under 28 U.S.C. [section] 1783. I wrote about this issue in connection with the Lantheus case, where a US party improperly tried to serve a subpoena in Canada.
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  Also, if we’re in the world of the FRCP rather than quirky New York collections law, a subpoena, under FRCP 45, isn’t served under FRCP 5. I’m just saying.