Service of a Subpoena – will it work?
Gathering oral or documentary evidence in England & Wales on behalf of a US litigant
The Problem with Subpoenas
As with any other judicial document, we can serve a subpoena for you through our gold, silver or bronze services – but will it do you any good?
Whilst US nationals may be subpoenaed abroad in accordance with 28 USC Para 1783 and can be held in contempt of court for ignoring such a subpoena, non-nationals could simply ignore you and there is no sanction for non-compliance – the UK court will not enforce a US subpoena (on top of which (a) you may find that you have wasted time and encounter problems with discovery cut-off dates, and (b) you have potentially lost the option to negotiate and seek the evidence voluntarily).
So, What’s the Answer?
Attorneys in the United States can utilise the services of a Solicitor in England & Wales (hereafter “England” for convenience), further to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters to seek oral evidence or the disclosure of documents from a party/witness/company/etc. based/resident in England for the purposes of litigation which is ongoing in the United States.
It is important to note that:
- There are alternative procedures for Scotland and Northern Ireland
- The rules for evidence in arbitration proceedings are different and would require discussion
To obtain a court order in England compelling oral testimony or the production of documents it is necessary to seek that the US court issues an Evidence Request (often referred to as a ‘letter of request’ or ‘letter rogatory’) addressed to the English Central Authority.
The form of the Evidence Request is critical to the success of the process and it must be carefully drafted, with the questions to be asked/the documents sought being precisely defined/listed.
The rules on obtaining evidence in England are very different to those in the US and it is vital to get the Request correct if you are not going to find that your application to the Court is rejected at the first step.
Graham Bridgman can guide you through the process and assist with drafting the Evidence Request so that it stands the best chance of producing the English Court Order you need. He can also explore the possibilities of obtaining the evidence voluntarily from the intended deponent.
Please contact us and we will arrange for Graham Bridgman to contact you to discuss your options and the potential costs with you.