The case of the day is Clint Eastwood v. Mediatonas UAB (C.D. Cal. 2021). Clint Eastwood accused the defendant, Mediatonas, a Lithuanian company, of using his name and likeness to promote and sell cannabidiol products. He sought leave to serve Mediatonas with process by email. I was alerted to the case by a colleague who was unhappy with the ruling. After all, Lithuania, a party to the Service Convention, has objected to service by postal channels (and indeed, to any method of service under Article 10 of the Convention), and thus there is no provision of the Convention that authorizes or at least permits service by email. Since the Convention is exclusive, the decision is clearly wrong. Grr!
That is all 100% correct. I’ve probably written dozens of posts that make just this point. However, look at things from Clint Eastwood’s lawyer’s perspective. There are a ton of cases (okay, district court cases) that say that service by email in these circumstances is permissible. So who cares if, in the abstract, those cases are wrong? They are precedent. The lawyer’s goal, after all, is to effect service of process quickly and without too much fuss, not to worry about what the law should be in principle. I decline to comment on what advice I have given to lawyers and litigants in this situation!
But even the most practical, workaday lawyer also needs to consider the endgame. Is the endgame to collect damages in the United States? Is the endgame to get social media companies or internet service providers in the United States to remove the offending content from their servers? Maybe. But if, on the other hand, the goal is to enforce the judgment abroad, then you have to ask what the foreign court will do when faced with a US judgment based on bad service. The quick and easy path may turn out to be too quick and easy.