Hague Service and Evidence Conventions: The US Central Authority’s Unusual Interpretation

A reader wrote in with the following case. He (a Mexican lawyer) asked PFI, the contractor that carries out the day-to-day work of the Department of Justice in its capacity as central authority for the United States under the Hague Service Convention, to serve a summons on a Mexican national in the United States. The summons would require the Mexican national to appear in court in Tijuana to be questioned about a promissory note he had signed. The Mexican proceeding was a “measure preliminary to a lawsuit,” apparently a proceeding in which the plaintiff gathers the evidence that he needs in order to file a lawsuit.

PFI, after some back and forth, refused to execute the request on the grounds that it was a request for the taking of evidence that could not be executed under the Service Convention. Here is the correspondence, with the names removed. The situation is a little comical—you get the sense both the lawyer and the contractor are banging their heads against the wall. This is an email string, so the first email is at the bottom:


From: []

To: []

Sent: Wednesday, October 8, 2014 11:41 AM

Subject: RE: []

We can serve someone with a summons and complaint issued by a court in a civil or commercial matter.

We cannot serve anyone with a deposition or subpoena request for a foreign country. If these do get served in the United States, they are not enforceable unless it goes through the office of foreign litigation, and would be considered invalid service.

If we notice that it is a deposition or subpoena request, we are required to reject this by the Office of Foreign Litigation and return it to the person who sent us the documents and instruct them to submit it to the office of foreign litigation.

------------------------

From: []

Sent: Wednesday, October 08, 2014 11:25 AM

To: []

Subject: Re: []

We are not requesting that you depose anybody. We are asking that you serve a person with a document.

-------------------------

From: []

To: []

Sent: Wednesday, October 8, 2014 11:22 AM

Subject: RE: []

Any request for a deposition from a foreign country is considered an evidence request and must go through the Office of Foreign Litigation. They are the only entity allowed to act on these types of requests.

---------------------------

From: []

Sent: Wednesday, October 08, 2014 11:16 AM

To: []

Subject: Re: []
I am familiar with the convention. We are not requesting that a US Court take the evidence for us, and for that we could do it without using PFI. We are asking that you serve him with the request to appear in Court in Tijuana.

----------------------

From: []

To: []

Sent: Wednesday, October 8, 2014 10:59 AM

Subject: RE: []

A deposition or subpoena is considered a request for evidence and must be processed through the Office of Foreign Litigation and in accordance with The Hague Evidence Convention.

http://www.hcch.net/index_en.php?act=authorities.details&aid=528

--------------------------

From: []

Sent: Wednesday, October 08, 2014 10:51 AM

To: []

Subject: Re: []

It is not a request for evidence, it is a request to serve [] to appear for a deposition in Tijuana, it is a step preliminary to a lawsuit.

---------------

From: []
To: []
Sent: Wednesday, October 8, 2014 10:25 AM

Subject: []

Mr. []

I received your request for service today. However, I do not see any request for service forms.

In order to complete the service request, I must receive a request completed by your judge.

For service via the Hague Convention, the form USM 94 must be signed and completed by your courts, and then submitted to our office

For service via the Inter-American Convention, the form USM 272 must be completed by the courts, and submitted to the ministry of foreign affairs for signature as well.

When reviewing your documents, they clearly states this is a request for evidence (page 3 of the packet). If this is a request for evidence, then this must be submitted to the Office of Foreign Litigation in Washington DC and is not something I can assist with.

I will be forwarding the file back to you today for completion of the required forms.

The lawyer then approached the DOJ itself to straighten out the mess. But to my surprise, the DOJ gave him essentially the same answer:


Dear []

As PFI has advised, a request to “serve” an individual in the United States for purposes of obtaining evidence, that is testimony, for use in a civil or commercial matter pending abroad is not a proper Request under either the Hague Service Convention or the Additional Protocol to the Inter-American Convention on Letters Rogatory. The determinative issue is not whether you are asking a United States court to depose a witness, but that you are seeking to obtain evidence from a witness located in the United States for use in a foreign proceeding. Such a request is directly governed by the Hague Convention on the Taking of Evidence Abroad for Use in Civil or Commercial Matters. Alternatively, the Mexican court or any “interested person” can move the United States district court where the witness is located for assistance in obtaining testimony from the witness pursuant to 28 U.S.C. 1782. Like a subpoena issued by a United States court for deposition testimony from someone located outside of the United States has no effect outside of the United States, a deposition subpoena from a foreign court has no effect within the United States. Hence, the need for judicial assistance in the form of a Letter of Request for evidence.

Please note that the United States has only acceded to the Additional Protocol to the Inter-American Convention, and Article 3 of the Additional Protocol describes the types of documents that may be served under that Convention to include a “[c]opy of the complaint or pleading that initiated the action; … untranslated copy of the documents attached [thereto;] [and] untranslated copy of any rulings ordering issuance of the letter rogatory …” In short, the United States is not a party to the Inter-American Convention for purposes of obtaining evidence located in the United States for use in a civil or commercial proceeding pending in a Mexican Court.

We hope this information helps clarify the relationship between the various Conventions.

---------------------

From: []

Sent: Wednesday, October 08, 2014 3:16 PM

To: OIJA Mailbox

Subject: Attention -- []

Dear [],

Below is the email I received from [] from PFI.

In a nutshell, this is my request:

We filed in Mexico for a pre-trial process, literally translates into "Measures Preliminary to a Lawsuit". I am trying to serve a Mexican National by the name of [], with a notice to appear in court to be questioned regarding his signing of a promissory note. I AM NOT asking that he be interrogated in the US by a US Court, I am just asking for service to be executed on this person for him to appear in Mexico for questioning. If he fails to appear, that is another issue.

[] responds that he cannot process it because it is a deposition request or subpoena request by a foreign country, but he fails to cite where in the Inter American or Hague Service Conventions is there any prohibition for this service to take place. Again, I am not asking that evidence be taken abroad, I am asking that Mr Manuel Lopez be served with a notice to appear in a Tijuana civil court for questioning.

In fact, the letter rogatory we transmitted states that he needs to show up in a Tijuana Court for the following:

1) Appear before the court in Tijuana to give his statement regarding a debt of 62,5000 dollars demanded by the applicant, plus interest, and to respond to certain questions that will be posed to him.

2) To give a statement whether a signature that appears on a document (a promissory note) is his.

This is to take place in Tijuana NOT in the U.S.

Your reply will be deeply appreciated.

Regards,

The problem with this analysis is that the Evidence Convention applies to cases where the foreign authority asks the US authority to take evidence on its behalf. That’s not what was happening here. Rather, the plaintiff was asking the US central authority to serve a summons or subpoena on its behalf for proceedings that were to take place in Mexico. I think the plaintiff’s lawyer was right on the money about this, and I hope the DOJ will reconsider its view, which I think is plainly wrong.

Just to put a little substance behind what I’ve just baldly asserted: Article 1 of the Evidence Convention provides that the convention applies in cases where a foreign judicial authority requests that a competent authority in the United States obtain evidence or perform some other judicial act. “Judicial act” is defined so as to exclude the service of judicial documents. Here, the request came from the foreign plaintiff, not a Mexican court, and there was no request to the US authorities to obtain evidence or to do anything other than serve the document (which, I take it, is a judicial document). I think this is dispositive.

Of course, from a practical perspective, there probably was no need for the plaintiff to proceed under either convention. Why not just hire a private process server to deliver the documents? If that would not work under Mexican law for some reason, what about a motion under 28 U.S.C. § 1696(a)? My point is that there are other, easier options.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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