The case of the day is McCarthy v. Johnson (D.D.C. 2022). The plaintiff had won a $6 million judgment against Michael Heath Johnson, who, she alleged, had bilked her out of millions of dollars in the 1980s, during a particularly vulnerable time for her. The District of Utah had entered judgment by default after Johnson refused to participate in discovery. With interest, today the judgment is worth nearly $30 million. Johnson never paid, and he died in South Africa in 2020.
McCarthy registered the judgment in the District of Columbia in 2021 and then served a subpoena on Gordon Oldham, a British lawyer living in Hong Kong who had done business with Johnson before his death. The thought was that Oldham might have knowledge of the assets of Johnson’s estate. Surprisingly, Oldham responded to the subpoena by producing a few documents. Let’s pause on this. It looks from the docket as though McCarthy served the subpoena on Oldham by mailing it to him, in Hong Kong. Why is this the wrong thing to do? First, a US subpoena can be served anywhere within the United States, but except in case of a subpoena directed to a US citizen abroad, where the court has approved the subpoena, it cannot be served abroad. Or maybe better: sure, you can serve a US subpoena on a foreign national abroad, but it has no legal effect. That’s why I said it was surprising that Oldham had volunteered documents. Second, you can’t serve a US subpoena by mail. It’s true that the Service Convention allows for service of judicial documents by postal channels when the foreign state hasn’t objected. The Hong Kong SAR has not objected to service by mail, so there’s no categorical bar to service of documents by mail in Hong Kong. The problem is that while the Convention permits service by post when there is no objection, it does not authorize service by post. You have to look to the law of the forum to see whether service by post is authorized. US federal law does not authorize service of subpoenas by mail, and therefore, the service was ineffective. If you really wanted to serve a subpoena abroad in a Service Convention country, the thing to do would be to transmit a request for service to the foreign central authority.
McCarthy then sought an examination of Oldham under a local rule of the court providing for witness examinations in aid of execution. Oldham argued that the court could not exercise jurisdiction over him, because he had no contacts with the United States sufficient to support jurisdiction. There didn’t seem to be a real dispute about the jurisdictional facts, and the court correctly held that it could not exercise jurisdiction.
The judge went a little astray when he wrote that discovery from a non-party foreign national abroad is “governed” by the Evidence Convention. The Evidence Convention is just an optional means of obtaining evidence. It is not an exclusive means. So if there were another means (say, a method of obtaining discovery under Hong Kong law), you don’t have to use the Convention. Or if you wanted to use one of the consensual methods the Convention allows (for example, appointment of a commissioner to take evidence abroad), it may be that no foreign government permission is required, or that if permission is required, it is straightforward to get. So you may not need to use the letter of request mechanism, and it’s not quite right to say that the Convention governs.