Case of the Day: Judicial Authority of Ohio v. Mann

Jerusalem Magistrate Court building
The Magistrate Court building in Jerusalem. Credit: Yagasi

The case of the day is Judicial Authority of Ohio v. Mann (Jerusalem Magistrate Court 2016). I don’t have the text of the opinion, unfortunately, but I got a pointer to the case from Eric Sherby’s Globalit blog. The case involved a letter of request under the Hague Evidence Convention seeking discovery in aid of execution of an Ohio judgment. The exact procedural posture of the case in Ohio is unclear from Eric’s report. In any case, the Jerusalem Magistrate Court refused to execute the letter of request on the grounds that Article 1 of the Convention provides: “The expression ‘other judicial act’ does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.”

I know of no American case that has considered the meaning of this exclusionary language in Article 1. It seems to me, though, that the Jerusalem court got this one wrong. Here is the entire text of Article 1.

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.

A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.

The expression “other judicial act” does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.

We see in the first paragraph that the Convention allows letters of request (1) to obtain evidence, or (2) to perform some other judicial act. What does “other judicial act” mean? The Convention does not define the term, but the third paragraph of Article 1 makes it clear that the term “other judicial act” excludes the service of documents (which is a matter addressed by the Service Convention, at least in a state such as Israel that is party to both conventions), and that it excludes “issuance of any process by which judgments or orders are executed or enforced.”

So if, as it appears, the letter of request was a request to the Israeli authorities to obtain evidence, then the exception to the definition of “other judicial act” simply should not have come into play, because a request to obtain evidence is, as a textual matter, treated separately from a request for an “other judicial act,” and because in any case such a request did not seek “issuance of any process by which judgments or orders are executed or enforced.”

Of course, if the letter of request was a request for an Israeli writ of execution (or the Israeli equivalent) on account of the US judgment, then of course the letter of request would have been improper under the Evidence Convention because it would have been a request for issuance of process by which a judgment can be executed or enforced. I believe this kind of request was what the relevant language in Article 1 was meant to deal with.

Similarly, if the letter of request was a request for service in Israel of a US subpoena, see, e.g., 28 U.S.C. § 1783, then the letter of request would have been improper under the Evidence Convention because service is a matter for the Service Convention. (I dealt with a similar situation in December 2014).

The Practical Handbook on the Evidence Convention (3d ed. ¶ 75) cites a case from the Tel Aviv Magistrate Court, SEC v. Eddie Antar, M.C.C. (T.A.), 5 Aug. 1992, No. 5-41/92, for the proposition that “the exclusion in Article 1(3) does not prevent the use of the Convention to obtain evidence for use in proceedings for the enforcement of a judgment in the Requesting State.” Unfortunately, I don’t have access to the text of the decision, but if the Handbook is citing it correctly, I think it states the right rule.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. 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 treatise on International Aspects of US Litigation (J. Berger, ed. 2017), 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 and 2014 - 2016.

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