The case of the day is Professional Investigating & Consulting Agency, Inc. v. Suzuki (S.D. Ohio 2014). The defendants, David Suzuki and Suzuki Reconnaissance Advisors, Ltd., were located in Hong Kong. The plaintiff, Professional Investigating & Consulting, was an Ohio private investigation firm. The claims were for breach of contract. The action was filed in November 2011.

PIC hired a process serving firm to attempt to serve the defendants through the Chinese central authority, but their attempt failed because they had given incorrect addresses for the defendants. PIC then corrected the addresses and tried again, but for more than a year the Chinese central authority had not returned a certificate concerning service.

In September 2013, PIC effected service by personal delivery via a private process server. Suzuki (personally, not through his lawyers) sent a letter to the Court objecting to that mode of service. I’m not going to delve into the question whether Suzuki’s objection was sound—the judge found that personal service was improper and ordered PIC to try again.

PIC then moved for leave to serve the defendants by email. The court, continuing a sad trend, granted the motion. It held that PIC had shown that the Hague Service Convention does not prohibit service by email.

As Plaintiff contends, the Hague Convention is silent on email service. Various courts have agreed that service by email is not prohibited by the Hague Convention. Email service has been approved even where, as here, the country objects to Article 10 of the Hague Convention.

(citations and internal quotation marks omitted).

I’m not going to go over all this again. I’ll simply make a few points:

1. Hong Kong has not objected to service under Article 10, contrary to the judge’s suggestion.
2. Because the Convention is exclusive, it’s not enough to note that the Convention is silent on email. Indeed, the Convention’s silence on email should be fatal to the case for service by email, since the only permissible methods of service are those authorized or at least permitted by the Convention.
3. The decision could be right despite the poor reasoning if you think email comes within the definition of postal channels. But for reasons I give in my recent paper, I don’t think that’s right.

At what point do I have to stop saying that the courts keep getting this wrong and start saying that the law is what the courts say it is? I’m sticking with this—all of the bad decisions so far are at the trial court level.