The case of the day is Al-Saadi v. Annchery Fajas USA, Inc. (S.D. Fla. 2022). If you want to know how I felt after reading the decision, take a look at the image to the right.
The opinion doesn’t explain what the case is about. The plaintiffs, Humam Sarmad Al-Saadi and Celebrities Center for General Trading Co., sought leave to serve a subpoena on two non-parties, CI Manufacturas and Yerone Labroudett, both in Colombia, by email. The court agreed. I just cannot.
It’s important to note that there is no indication in the case that the proposed witnesses are US citizens, and no citation to the relevant statute, 28 USC § 1783. I assume that in fact the witnesses are not Americans. If they were, some of my views would change, though my ultimate view of the case would not.
First, Rule 45 is clear on the places where a subpoena may be served. “A subpoena may be served at any place within the United States.” Fed. R. Civ. P. 45(b)(2). The decision doesn’t mention this territorial limitation.
Second, a subpoena is a judicial document. Colombia is a party to the Service Convention. The Convention is exclusive, which means that you have to use a method of service the Convention authorizes or at least permits. (The decision does not say that the witnesses’ physical addresses are unknown, and I assume that the addresses are known and that the Convention therefore applies). Colombia has not objected to service by postal channels, which means that it is possible that service by email in Colombia comports with the Convention—if you take the view that email is within the postal channel. Again, the decision is silent on this issue.
Third, while Rule 4, the rule governing service of a summons, allows for service by alternate means with the court’s permission, Rule 45, the rule governing service of a subpoena, does not. The court does discuss this point, and in particular the way the courts sometimes rely on Rule 4 to decide what it means to “deliver” a subpoena to a witness. But I don’t see how you can get from that discussion to the conclusion that Rule 45 incorporates Rule 4(f)(3), authorizing service by alternate means.
Finally, what will happen once the Colombian witnesses receive the subpoenas? Probably nothing. And there is nothing the US court can do to enforce the subpoena. This leads to a general point: if you are serious about obtaining evidence abroad and you need to compel the witness to testify, you need real advice about how to do that. Serving the US subpoena by email on the foreign witness? Yikes.