“Tag Service” and Section 1782
June 20, 2023
[This post originally appeared at Letters Blogatory and is reprinted here with the author’s permission.]
Bill Dodge has a really interesting post about a decision from the bench in an SDNY Section 1782 case, In re Fourworld Event Opportunities Fund. Decisions like this are from the darkest corner of the legal dark web. They are not published. They are not available on Lexis or Westlaw, even as unpublished decisions. They aren’t findable with a web search, unless someone has uploaded the decision to RECAP or a similar service. So, they are really hard to find.
The decision is in most ways a pretty typical application of the Intel factors, leading in this case to a decision to quash a subpoena that the judge had, on an ex parte application, already authorized. What’s fun about the case is that after the subpoena was issued, the applicant served it on the respondent when he was passing through New York. In other words, this was a case of “tag jurisdiction.” Everyone in the case agreed that tag jurisdiction is a valid means of obtaining jurisdiction in a Section 1782 case, though the judge noted, rightly I think, that the method of obtaining jurisdiction was relevant to her consideration of the discretionary factors under Intel. But lots of people are uncomfortable with tag jurisdiction, and Bill is critical of it in his post, so I thought it would be useful to give some thoughts on the issue here, at least as it is relevant to Section 1782.
There’s a significant difference between serving a summons by “tagging” a foreigner who is just passing through and serving a subpoena on a foreigner who is just passing through. If the service of a summons is effective, then the foreign defendant is going to be bound by the judgment of the U.S. court, even if he leaves the country immediately after being sued. (Of course, whether his own courts will recognize a U.S. judgment based on tag jurisdiction is another question altogether.) But a foreigner who is served with a subpoena while passing through and then returns home has procedural options that the foreign defendant doesn’t have.
Consider FRCP 45(b)(2), which allows for service of a U.S. subpoena anywhere in the United States. So, if I happen to be passing through Los Angeles, am served with a subpoena in a case pending in a federal court in California while I’m there, and then return home to Boston immediately, the service is valid. But under FRCP 45(c), it’s clear that I am not going to have to fly out to Los Angeles again to testify, or to produce documents in LA. The rule provides that I can’t be forced to appear in person more than 100 miles from where I live or work, and that I can’t be forced to produce documents more than that distance away.
In a domestic U.S. case, the answer is simply to have a local lawyer provide a conference room for the deposition to take place, or an address for the documents to be produced. And I really have no cause for complaint because we are, after all, one country, and as long as I am not burdened by having to travel, there’s no real reason why I shouldn’t have to respond to the subpoena.
But consider someone who lives in, say, Germany, like the respondent in Fourworld. He can’t be compelled to travel back to the United States to comply with the subpoena, given the provisions of Rule 45(c). And a deposition or the production of documents could not, under German law, go forward in Germany without the permission of the German government. The situation might be less clear in other countries where the taking of evidence for use in foreign proceedings without government approval is not forbidden. I can also imagine an interesting issue about a kind of “bulge jurisdiction” for people living along the border in Canada or Mexico. But in practice, I don’t think a U.S. subpoena could really be effective to compel in-person testimony or production of documents in any foreign country.
So, while I think there is a real question about tag jurisdiction as a way to make someone a defendant in a U.S. case, I think there is much less cause for worry when a foreign witness traveling in the United States is served with a subpoena.