The case of the day is TracFone Wireless, Inc. v. CNT Wireless, LLC (S.D. Fla. 2019). TracFone accused the defendants of an “unlawful international mobile telephone trafficking scheme.” It sought leave to serve subpoenas on non-parties in Canada. The case is similar to TracFone Wireless, Inc. v. Technopark Co. (S.D. Fla. 2012), which I described in a post called The Curse of TracFone.
This is a pet peeve of mine. Let’s just review why (with the exception for US citizens abroad in 28 U.S.C. § 1783) you cannot serve a subpoena outside the United States.
- Because the rule says so. Rule 45(b)(2) says a subpoena “may be served at any place within the United States.”
Well, that’s really the only reason. Many countries will object to the service of writs and other process, including subpoenas, by foreigners in their territory, but the way countries give effect to that objection is by objecting to service by postal channels under Article 10(a) of the Hague Service Convention. Canada hasn’t done so.
The Southern Distirct of Florida has really taken a wrong turn with its TracFone cases. These cases should not be cited or followed.