Legal Ethics, International Judicial Assistance, and Coronavirus


Readers, I hope you each of you, wherever in the world you are, is staying safe and healthy and following the advice of your public health officials. We are all in this together, and we will get through it! Now if you know me, you know that I can find an international judicial assistance angle to almost any discussion. How about the coronavirus and COVID-19? You bet!

First, let’s think about service of process. Sometimes you have no choice but to send a sheriff, a bailiff, or a process server to a defendant’s door. Maybe you have a statute of limitations problem that can’t be avoided. Maybe you need to serve process in a place where personal service is the only method of service that is permissible, even with a waiver from the defendant or his counsel. But a lot of the time you do have a choice. If you are filing a US lawsuit, you can request a waiver of formal service of summons, even for defendants abroad. The rule is designed so as not to raise serious concerns by foreign states. In US or non-US cases, you can think about simply waiving service, agreeing to accept service by email, or other methods that don’t require the process server to get too close physically to the defendant. If you represent a defendant, consider agreeing to accept service electronically or by some other means that accords with the public health guidance we’re getting. For US lawyers, bear in mind your ethical duties to expedite a litigation and also the duty under FRCP 4(d) to avoid the costs of service.

What about taking evidence? Consider cooperating with your adversary to arrange for videoconferencing or other methods of taking evidence that don’t require travel or putting people together in the same room. In the international context, you might find this 2015 report of the HCCH experts’ group on the use of modern technology in the taking of evidence to be useful.

Everyone has a part to play in stopping the spread of the coronavirus and protecting the health of the vulnerable—even international lawyers! Do what you can.

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