Case of the Day: Nicholas v. Environmental Systems

The case of the day is Nicholas v. Environmental Systems (International) Ltd. (Tex. Ct. App. 2016). In a Canadian copyright infringement lawsuit brought by Frederick Nicholas against Environmental Systems, Brian G. Cook, Reif Winery Inc., Klaus Reif, and Re/Defining Water Inc., the court awarded costs and attorney’s fees to the defendants. Environmental Systems and the other defendants in the Canadian action then sought recognition and enforcement of the Canadian judgment in Texas.

Nicholas argued that the Canadian judgment was not properly authenticated. The Texas court held a trial and entered a judgment recognizing the Canadian judgment, and Nicholas appealed.

The certified copy of the judgment contained the judge’s typewritten signature, a signed certification from the court’s registry (the equivalent of the clerk’s office here), and a signed certification with the seal of the Department of Foreign Affairs and International Trade. In other words, the defendants had completed most of the steps of chain legalization. The most correct thing to do would have been to obtain a certification of the DFAIT signature and seal from an appropriate person at the US embassy or consulate in Canada, or else from the Canadian embassy or consulate in the United States, completing the chain legalization. See, e.g., FRCP 44. Canada is not a party to the Apostille Convention, which is why this rigmarole is necessary. (I should note, by the way, that I am simply assuming that Texas law is like federal law and other state laws with which I’m familiar, and that it requires a final certification as the last step in the chain legalization process).

Instead, the defendants offered the testimony of the lawyer who had sent a messenger to obtain the certified copy from the registrar, explaining that this was his usual procedure to obtain certified copies.

Now, I have no real doubt that the certified copy of the judgment was what it purports to be. Still, as a technical matter I think the affidavit is insufficient. It was not based on the lawyer’s personal knowledge but on what the messenger or agent told the lawyer, and even if the lawyer had gone himself to the registrar, it’s unclear that he could have stated on personal knowledge what he would need to state to authenticate the judgment. Avoiding these kinds of problems is precisely the reason why the law makes provision for chain legalization. Nevertheless, the court held that the lower court had not abused its discretion by finding the Canadian judgment was sufficiently authenticated.

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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