Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

Brexit, Service of Process, and Evidence Compulsion in the United Kingdom

My newsfeed has been jam-packed with Brexit stories since England & Wales voted to quit the European Union (for the record, Scotland and Northern Ireland voted overwhelmingly to remain—and this will have additional effects on the state of the UK). On the morning of the result, I gave a CLE lecture that was co-opted quite a bit by the news. Personally, I was stunned, and my befuddlement was heightened by the many voters who offered that “I just voted Leave to shake things up… I didn’t think we’d actually do it!”

(Aside: this is what happens when dubious soundbytes—and flat-out falsehoods—appeal to an angry and frustrated electorate. Take heed, America… November is coming. Additional aside: don’t be too hasty to conclude that Brexit will actually come to pass. That is a good thing. If it does, Scoxit is next.)

Lest we Yanks think the result creates problems only on the other side of the Atlantic… think again. Within hours of the vote, the Pound plummeted to a three-decade low (the Euro fell also, but not precipitously), and that makes American goods and services more expensive abroad. Logically, the US manufacturing sector will take a hit as commerce slumps with the world’s largest trading bloc. True, it makes travel across the Atlantic highly attractive, but it stymies our already tepid economic recovery.

What of litigation, though? How will the Brexit affect service of process in the United Kingdom? Or on the continent, for that matter? How will it affect the compulsion of evidence in foreign jurisdictions?

Short answer: it won’t, except perhaps to make agent services in Europe and the UK less costly to American litigants.

The long answer really isn’t long, except to say that service of process and evidence compulsion are very country-specific issues, and those issues have little or nothing to do with the European Union. As to procedural issues in American lawsuits, Brexit will have negligible effect.

(Image by Rlevente, via Wikimedia Commons.)

Electronic Service of Process Abroad

Electronic Service of Process Abroad

A debate is simmering in the service of process community, and should come to a rolling boil in the next several years: whether process can be legally served by electronic means. Frankly, it ought to be—not just because it is so simple—but because it fulfills the constitutional standard much more effectively than other less practical means.

That standard? In Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Supreme Court held that service of process must be effected by a means reasonably expected to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges.

Traditionally, service by publication has been used to “put the whole world on notice” of a claim where a defendant could not be located. For many years after Mullane, publication was really a plaintiff’s last (remotely) reasonable resort. Absent finding an address by dumb luck or just happening to catch a defendant on the street, not many options were left.

In reality, the method is not reasonably calculated to do anything but increase publishers’ revenue. Its effectiveness is a gross legal fiction. [Honestly, how many people read legal notices in the paper anymore, if ever? For that matter, how many people read “the paper” anymore?]

Nowadays, though, email and social media platforms have become all but ubiquitous. No business can expect to remain a going concern if it lacks an internet presence. And only the most impoverished individuals—aside from militant Luddites and the very aged—lack an email address. Yet the lion’s share of courts still reject electronic service, opting to mandate more traditional methods: personal delivery by a process server, registered mail (ahem, good luck with that), and the all-but-useless publication.

Some states are slowly coming on board and allowing e-service to registered agents or to evasive defendants. The real progress in case law is at the federal level, especially as to defendants located abroad. The Federal Rules of Civil Procedure take particular care to codify the Mullane standard in Rule 4(f), which governs service on defendants located outside the United States, and 4(f)(3) specifically has been held to render “other means not prohibited by international agreement” just as valid as service effected by more traditional means. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007, 1015 (9th Cir., 2002).

By its own terms (Article 1, right up front), the Hague Service Convention is specifically inapplicable where a defendant’s address is unknown, and the Inter-American Convention on Letters Rogatory & Additional Protocol is not a treaty whose effect is mandatory (these are the only two treaties on service to which the U.S. is signatory). If the defendant is known to be abroad, but his/her/its address cannot be ascertained, email cannot then be prohibited by international agreement. Accordingly, courts have wide latitude to authorize service by email, especially where the plaintiff has diligently searched for the foreign defendants. [For a thorough analysis of such a case, see D. Light Design, Inc. v. Boxin Solar Co., Ltd., unreported, No. C-13-5988 EMC (N.D. Cal., 2015).]

Look for the validity of email service to grow, especially where it becomes considered a Postal Channel under Hague Article 10(a)… more on that at a later date. For now, a couple of practice tips…

Practice Tip #1: This idea can be awfully handy with Russian defendants… the Hague Service Convention is ineffective with Russia, so request leave of court and click send.
Practice Tip #2: When drafting a contract with a foreign party, don’t just designate an agent for service here in the United States… designate an agent and stipulate that they can be served electronically!

Image: Courtesy www.elbpresse.de via Wikimedia Commons.

Keeping Translation Costs Down

Keeping Translation Costs Down

We regularly encounter lawyers who cringe at the thought that the biggest expense involved in service of process abroad is often translation. Their misconception is either that language is no big deal, or that translators are a dime a dozen. Neither is true, but sticker shock can still be… well, shocking. So how do you avoid it?

Easy. Just pick an English-speaking defendant in an English-speaking country. Or at the very least, pick a country like Israel or the Netherlands, where most everybody speaks English anyway so they don’t specifically require translation under the Hague Service Convention.

Otherwise, yes, counsel, you do have to translate that thing. But the mere requirement to translate does not mean you can’t keep your costs down. Here are a few tips to reduce the price tag:

Keep brevity in mind. Yes, this is difficult for lawyers. We’re the most verbose race of people on the planet. But remember that federal notice pleading gives you a great cost-cutting device. A “short and plain statement of the claim” is all you need. In state court, the pleading form varies, but there’s not a jurisdiction anywhere that actually wants longer pleadings. The court just wants them to be complete, so even in a fact pleading state, don’t write as if you’re being paid by the word. Just imagine you’re a 1L again, and your legal writing professor is barking at you to keep it under 1,000.
Avoid exhibits where possible. If you can simply reference an ancillary document, then just reference the thing. Don’t include it as an attachment or exhibit. Exhibits sometimes comprise 90% of a translation bill—often unnecessarily. [Consult local rules, of course.]
Ask your translation provider for a volume discount if you have a huge sheaf of documents (roughly 30,000 words or more). Much of the provider’s cost lies in the set-up of the project—the administrative burden is the same whether you’re worth six hundred dollars or six thousand—so a lower price-per-word is warranted with bigger projects.
And shop around—translation is a hyper-competitive field, much like law. But be wary. Just as with lawyers, a low translation price tag does not usually correlate with quality, and you often get what you pay for. Ensure that the translation provider has at least some quality assurance process. The project should go through at least two people’s hands (the translator and an editor), preferably three (including a proofreader).

Above all, don’t cheap out—and don’t let your client cheap out either—because it will come back to haunt you.

Bad idea: “Hey, Maria’s parents are Mexican—she can translate the docs into Spanish for us.”
Worse idea: “Rob in accounting spent a year riding his motorcycle across China after college. Let’s have him do it.”
Worst idea: “Google Translate.”

Never mind the fact that Maria is a fully qualified attorney whose time would be wasted on a translation project. Never mind that Rob in accounting is a math guy precisely because his verbal skills are horrible. Neither of them is a qualified translator, so get a pro to do it.

As for Google Translate…

[A new platform called Google Advocate (“Advocate” is a verb there) should roll out any day now. It will draft any legal document at the click of a mouse, for free. It may inadvertently convey your house to your college roommate, but hey, it’s free. What could possibly go wrong?]

A related caution: your translation provider may suggest that you hire an outside agency to handle the Hague Service Request on your behalf. While this is great advice, be wary here, too. The translator may recommend an agency that is not qualified to undertake Hague requests. In short, if that agency doesn’t have an attorney on staff to sign your USM-94, do not use them. If you accept their assertion that it’s not a problem, you’re accepting a legal conclusion from a non-attorney (see here for a bit more detail).