In the case of the day, AQ Asset Management LLC v. Levine (N.Y. Sup. Ct. 2014), a Swiss national who had sued US defendants in the New York state courts found that he could not avoid the reach of a New York subpoena in a related case brought by the same US parties. In 2008, Markus Schumacher, the Swiss national, sued the City of New York, Paul Ware Jr., William C. Clifford, Antiquorum USA, Inc., and Evan Zimmerman in the New York Supreme Court. Schumacher’s claims are not made clear in today’s decision: they “arose from an August 2007 incident that took place at the offices of Antiquorum USA, where Schumacher had served as the chief operating officer for plaintiff Antiquorum S.A.” Two of the defendants in the 2008 lawsuit, Antiquorum and Zimmerman then sued Michale Levine, Habsburg Holdings Ltd., and Osvaldo Patrizzi, also in New York. The second suit was related to the first, though the decision doesn’t explain exactly how.
AQ and Zimmerman wanted to take the deposition of Schumacher for use in the second action. Schumacher, note, was not a party to that action. Schumacher argued that he was not subject to the court’s subpoena power and that AQ and Zimmerman would have to proceed by letter of request under the Hague Evidence Convention. AQ and Zimmerman argued that Schumacher was subject to a subpoena because he had sued them in New York and thus consented to the court’s jurisdiction, and that under New York law it could serve the subpoena on Schumacher’s US lawyer.
On the one hand, the general rule is that “a suitor in attendance in a court outside the territorial jurisdiction of his residence is immune from service of civil process while attending court.” On the other hand, “a basic exception to this doctrine is that a non-domiciliary who commences suit in a state may be subject to counterclaims by the defendants.” Nor must the claim against the foreign plaintiff be raised via a counterclaim; it can be raised in a separate action. And under New York law in such a case, the foreign plaintiff in such a case is deemed to have appointed his attorney, or the clerk of the court, as his agent for service of a summons.
From all of this, the court reasoned that Schumacher was subject to a subpoena and that the subpoena could be served on his US lawyer. The reasoning seems to be that if service of a summons is permissible, then a fortiori, service of a subpoena must be permissible, too. That seems sound. I think it’s noteworthy that while the Hague Service Convention is exclusive, the Hague Evidence Convention is not. So it’s conceivable that Schumacher could have an argument under the Service Convention that he lacks under the Evidence Convention. But it’s pretty clear he would have no real argument under the Service Convention, because the method of service chosen does not require transmission of the document abroad.