The case of the day is McCarthy v. Johnson (D.D.C. 2022). I wrote about the last round a few months ago. Decades ago, Helen McCarthy sued Michael Heath Johnson in the District of Utah, alleging that he had converted her property, including an ownership stake in the Salt Lake Tribune and real property in Bel Air, California, to his own use. She won a default judgment for more than $6 million. By the time Johnson died in South Africa in 2020, the judgment, with post-judgment interest, was for more than $30 million. In 2021, McCarthy registered the judgment in the District of Columbia and sought to serve a subpoena on Gordon Oldham, Johnson’s lawyer, who was in Hong Kong. I wrote about that flawed effort in the last post.

McCarthy has clearly been following Letters Blogatory, because she has now asked the court to issue a letter of request under the Hague Evidence Convention to seek the aid of the authorities in Hong Kong in taking evidence form Oldham. 😉 The application stated that Oldham had confirmed that he represented Johnson’s estate and that he owns the property where Johnson was living when he died. Somewhat unusually, Oldham opposed the issuance of the letter of request. I say “unusually” because typically a non-party saves his powder until the letter of request has issued and the foreign authorities have taken some action. Anyway, Oldham argued that the litigation was 30 years ago in Utah and that neither he nor Johnson nor McCarthy had any connection with Washington. He argued that the court lacked the power to issue the letter of request because it lacked jurisdiction over him, that he had already responded to some of McCarthy’s informal requests for information, and that McCarthy had not shown he was likely to have relevant information.

The interesting point was the court’s jurisdiction. The judge was right on the money, although this is an issue that has confused judges before. A subpoena is a writ commanding someone to do something (namely, to show up and testify, or to produce documents), on pain of contempt. So of course the court needs to have jurisdiction over anyone on whom a subpoena is served. Because our rules governing subpoenas are strongly territorial, the jurisdiction issues with subpoenas more or less take care of themselves. A US court’s subpoena can be served anywhere in the United States, and a US court has jurisdiction over any person served with a subpoena in the United States (even though there are lots of reasons that the person may not have to obey the subpoena, e.g., if the subpoena commands attendance more than a certain distance from the person’s home or place of business). A letter of request, on the other hand, is not a command at all. It is a request to the foreign authorities to exercise their jurisdiction. There is, therefore, no need for the court to have jurisdiction over the person from whom the evidence is sought.¹It’s interesting to think about where a summons falls in this way of thinking about things. “The forms of action are dead, but they rule us from their graves.” The summons at common law was not just a mere notice, but it was not backed up by any sanction for disobedience (there was no default judgment at common law).

The court went on to do a comity analysis and to issue the letter of request. This was clearly the right result, and when (as in this case) the letter of request sought evidence from a non-party, I’ve argued before that comity isn’t really the question. Comity is the question you ask when deciding whether to send a letter of request seeking evidence from a foreign person that is a party to US litigation or whether instead to try to force that foreign person to respond to an ordinary US discovery request. But I understand that courts talk about comity in this situation all the time, and fighting it is probably a losing battle.

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  It’s interesting to think about where a summons falls in this way of thinking about things. “The forms of action are dead, but they rule us from their graves.” The summons at common law was not just a mere notice, but it was not backed up by any sanction for disobedience (there was no default judgment at common law).