Serving judicial documents on individuals and companies located outside the United States can be a time-consuming and expensive process. First, you have to figure out if the person or entity to be served is located in a country covered by the Convention on the Service Abroad of Judicialand Extrajudicial Documents in Civil and Commercial Matters (a.k.a. the
“Hague Convention”) or another international service treaty. Then, you have to determine whether that country opposes certain Articles of the Convention or other applicable service treaties. After all of that, you still have to jump through the country-specific hoops to effectuate proper service.
But on May 22, 2017, the United States Supreme Court provided a definitive answer to one question over which there has been a long-standing disagreement. Specifically, the Court resolved the split among courts as to whether the Convention permits service by mail.
Until now, some courts, like those in the Fifth and Eighth Circuits and in Texas, had held that the Convention does not permit service by mail. See Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d. 172, 173-74 (8th Cir. 1989); Velasco v. Ayala, 312 S.W.3d 783 (Tex. Ct. App. 2009). In contrast, courts in the Second, Fourth and Ninth Circuits and in California had concluded that the Convention allows service by mail. See Ackerman v. Levine, 788 F.2d 830 (2nd Cir. 1986); Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998); Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004); Shoel Kako v.Superior Court, 33 Cal.App.3d 808 (Cal. App. 1973).
In Water Splash, Inc. v. Menon, 2017 LEXIS 3212, the Supreme Court unanimously sided with those courts which have allowed service of process by mail. Specifically, the Court held that the Convention permits service by mail if: (a) the receiving country has not objected to service by mail; and (b) service by mail is authorized under otherwise-applicable law.
At issue in Water Splash was the text of Article 10 of the Convention. The English version states:
“Provided the State of destination does not object, the present Convention shall not interfere with –
(a) The freedom to send judicial documents, by postal channels, directly to persons abroad,
(b) The freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
(c) The freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”
(Emphasis added).The dispute in Water Splash and the other cases in which parties contested service by mail under the Convention centered around the use of the word “send” in Article 10(a) compared to the use of the phrase “to effect service” in Articles 10(b) and 10(c).
To reach its unanimous decision in Water Splash, the Court looked at the text of the Convention, the structure of the Convention, and extratextual sources. The Court emphasized that “the scope of the Convention is limited to service of documents” and that in fact, “[e]ven the Convention’s full title [Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters] reflects that the Convention concerns ‘Service Abroad.’”
Because the entire framework of the Convention concerns service of documents, according to the Court, “it would be quite strange if Article 10(a) – apparently alone among the Convention’s provisions – concerned something other than service of documents.” Thus, for “Article 10(a) to do any work, it must pertain to sending documents for purposes of service.”(Emphasis in original).
The defendant futilely tried to counter that logic by arguing that Article 10(a) applies to “post answer judicial documents” but does not apply to service of process documents. But the Court rejected that argument, because “[i]f the drafters wished to limit Article 10(a) to a particular subset of documents, they presumably would have said so.” Plus, Article 10(a) uses the same phrase “judicial documents” as used in Articles 10(b) and 10(c). Therefore, “the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom.”
The Court even relied on the French version of the Convention to support the conclusion that the Convention permits service by mail. The Court noted that the “French version of the Convention is ‘equally authentic’ to the English version.” And the French counterpart to the word “send” in Article 10(a) is “addresser” which “has been consistently interpreted as meaning service or notice.”
Finally, the Court looked at the drafting history of the convention, the Executive Branch’s interpretation of the Convention and views of the other parties to the Convention. All of those extratextual sources supported the Court’s determination that the Convention allows service by mail.
Although the Convention allows service by mail, that “does not mean that the Convention affirmatively authorizes service by mail.” Rather, Article 10(a) “simply provides that, as long as the receiving state does not object, the Convention does not ‘interfere with … the freedom’ to serve documents through postal channels
As the Court noted, some signatory countries (the Czech Republic, Bulgaria, Hungary, Kuwait and Turkey among them) have objected to all or parts of the service methods mentioned in Article 10. In those countries, service by mail is not acceptable under the Convention. For a complete list of countries that have opposed all or some of Article 10 (and other Articles of the Convention), see the “Table Reflecting Applicability of Articles 8(2), 10(a)(b) and (c), 15(2) and 16(3) of the Hague Service Convention” (December 2015) here.
The decision in Water Splash may make serving judicial documents in foreign jurisdictions which have not objected to service by mail easier. But parties will still need to analyze the specific service methods allowed by the country in which a person or entity is to be served. Plus, service by mail must be an appropriate means of service under the law of the originating state. If the receiving country has not objected to service by mail and service by mail is authorized under the applicable state law, then under Water Splash, service by mail is permissible. So, check your mail if you are located in or have company facilities in countries which allow service by mail. You may have just been validly served.
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Court Muzzles Counsel: Says Defendants Cannot Ask Plaintiffs if Their Attorneys Referred Them to Treating PhysiciansApril 27, 2017
Defense lawyers routinely ask personal injury plaintiffs how they came to be treated by their doctors. But defense lawyers in Florida will no longer be allowed to ask plaintiffs if their lawyers referred them to physicians for treatment even if those attorneys repeatedly refer their clients to the same doctors. In Worley v. Cent. Fla. YMCA, 2017 Fla. LEXIS 812 April 13, 2017), the Florida Supreme Court held that the attorney-client privilege protects a party from being required to disclose if her attorney referred her to a doctor for treatment. In a 4-3 ruling, the Court held that asking whether a lawyer referred a client to a doctor “implicates a confidential communication between the attorney and the client.”
In Worley, the plaintiff fell in the YMCA parking lot and injured her right knee. Because she claimed she did not have insurance, she did not see a specialist but instead retained attorneys and then sought treatment from specific orthopedic and anesthesia practices. During discovery, the YMCA “repeatedly attempted to discover the relationship” between Worley’s law firm and her treating physicians, because the YMCA suspected there was a ”cozy agreement” between the firm and the physicians.
As part of the attempts to discover whether the attorneys referred the plaintiff to the treating physicians, the YMCA asked the plaintiff in her first deposition if her attorneys had referred her to the doctors. The plaintiff’s attorneys objected claiming that the information was protected by the attorney-client privilege. In a second deposition, the YMCA asked “how [plaintiff] was referred to her doctor.” Again, plaintiff’s counsel objected to the question.
The Worley majority acknowledged “[t]hat the plaintiff was treated by a particular doctor is an underlying fact.” The majority also agreed “[t]hat the plaintiff received a referral to see a particular doctor is also an underlying fact.” Nonetheless, the court held that “whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and the attorney.”
But the majority ignored the requirement that to be privileged, a communication between a lawyer and a client must be “in furtherance of the rendition of legal services to the client.” § 90.502(1)(c) Fla. Stat. As discussed by the three dissenting justices, “[a] lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services.” Thus, “communications that do not involve legal advice” should not be protected by the attorney-client privilege. The dissent thus concluded that “if a communication is a recommendation of a physician from whom someone should seek medical treatment the referral does not constitute protected legal advice.”
To make matters worse, the majority seems to have restricted broader inquiries into relationships between plaintiffs’ firms and treating doctors. Before addressing whether the attorney-client privilege barred the specific question of whether the plaintiff’s attorneys referred her to her doctors, the majority considered “whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician [was] discoverable.” The majority stated that the relationship was not discoverable because the law firm was “not a party to the litigation” and treating physicians are not hired for the purpose of the litigation.
The majority did indicate that defendants could inquire whether the doctor provided medical care to the specific plaintiff pursuant to a “Letter of Protection,” to establish bias on the part of the treating doctors. (Letters of Protection are generally used only when patients lack insurance or adequate insurance to guarantee payment.) But this narrow limitation ignores whether the law firm and the treating physicians have ongoing financial relationships. And the majority decision would seemingly prevent defendants from discovering any referral relationship if the plaintiff has sufficient medical insurance.
As explained by the dissent, “[i]f a law firm routinely refers clients to the medical provider…the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”
While the overly broad wording of the majority opinion prevents defense counsel from asking plaintiffs if they were referred to doctors by their lawyers, the decision should leave open other avenues to discover information about attorney referrals to and “cozy agreements” with treating doctors. Some of those opportunities should include:
- Intake Forms: Most new patient forms ask who referred the patient to the doctor’s office. If the plaintiff admits his attorney referred him, no privilege should apply.
- Relatives and Third Parties: Defense counsel should be able to ask if the plaintiffs’ friends or relatives know who referred plaintiffs to their doctors. In general, plaintiffs waive any attorney-client privilege if they disclose their communications with their lawyers to other people.
- Treating Physician Depositions: Nothing in the opinion should prevent defense counsel from asking a doctor if the doctor knows who referred the plaintiff for treatment. If the doctor knows it was the plaintiff’s attorney, then the privilege has been waived through disclosure.
- Prior Testimony of the Treating Doctors: If the doctors have testified in other cases in which the same attorneys represented the plaintiffs, defense counsel should still be able to inquire about those prior cases.
Thankfully, the Florida Supreme Court’s decision in Worley is an outlier. As noted by the dissent, a lawyer’s referral of a plaintiff to a doctor is not legal advice. The identity of the person who referred a patient to a doctor is an underlying fact. The narrow majority in Worley simply reached the wrong conclusion. Defense lawyers across the country should remain vigilant to prevent the mistaken ruling in Worley from spreading to other states.
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A little less than two weeks apart, two federal judges emphatically let practitioners in their districts know how much they despise boilerplate objections to written discovery. Both judges delivered the same message: boilerplate objections violate the Federal Rules of Civil Procedure, are not valid objections and could subject parties or their attorneys to sanctions.
In the first order, Magistrate Judge Andrew Peck of the Southern District of New York expressed his disgust for boilerplate objections in just a few pages and most of those pages involved direct quotations from the Federal Rules, the Advisory Committee Notes to the rules and the specific requests for production and the responses to those requests. Stripped of the quotations, Judge Peck used fewer than a dozen paragraphs in Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017), to explain that boilerplate objections violate the Federal Rules in at least four ways.
In contrast, Judge Mark Bennett of the Northern District of Iowa penned an expressive 45 page treatise in Liguria Foods, Inc. v. Griffith Labs, Inc., 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa Mar. 13, 2017), in which he lambasted the use of boilerplate objections and analyzed whether the use of those objections by both parties constituted sanctionable conduct. Ultimately, Judge Bennett decided against issuing sanctions in this particular case, but he made it clear that he will issue sanctions in future cases.
Judge Peck’s Order in Fischer v. Forrest
In the opening sentence of his short order, Judge Peck declared that “[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District…” Specifically, Judge Peck reminded practitioners that amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015 and those amendments included changes to Rule 34 regarding responses to discovery requests. In particular, Judge Peck noted that:
(a) grounds for objections must be stated with specificity;
(b) objections must state whether responsive material is being withheld on the bases of objections; and
(c) parties must specify the time for production of documents, and if it will be a rolling, then the production will begin and end.
Lawyers who have not changed their “form file” for objections to discovery requests “violate one or more (and often all three) of these changes.” Judge Peck then lamented that “[d]espite the clarity of the no-longer-new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses.”
After noting that the defendant included 17 “general objections” in its responses to the discovery requests, Judge Peck quoted from the defendant’s objections to the first two document requests. The defendant objected “to the extent that [they are] overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence” and that the requests seek “information already in Plaintiff’s possession.”
According to Judge Peck, those objections violate the amended rules in at least four respects. First, the general objections violate Rule 34(b)(2)(B)’s requirement that objections be stated with specificity and Rule 34(b)(2)(C)’s requirement to indicate if responsive material is being withheld on the basis of a specific objection. Thus, “[g]eneral objections should rarely be used after December 1, 2015 unless each such objection applies to each document request.”
Second, the defendant’s general objections on the basis of “non-relevance” to the “subject matter of the litigation” and that the discovery is “not likely to lead to the discovery of relevant admissible evidence” are outdated. Because "discovery about 'subject matter' no longer is permitted" and because the “2015 amendments deleted” the “likely to lead to the discovery of relevant, admissible evidence” language, “lawyers need to remove [that language] from their jargon."
Third, objections that requests are “overly broad and unduly burdensome” are “meaningless boilerplate” because that “language tells the Court nothing.” Fourth, the discovery responses failed to indicate when the responsive material would be produced.
Judge Peck concluded his order with an ominous warning to practitioners:
From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).
Judge Bennett’s Order in Liguria Foods, Inc. v. Griffith Labs, Inc.
Judge Bennett, in Liguria Foods, concluded his order in similar fashion. But unlike Judge Peck, Judge Bennett used the typewritten version of yelling to issue his warning – he concluded his order in all capital letters. Specifically, he announced:
NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.
In his 45-page order, Judge Bennett cites no fewer than ten scholarly articles to support his opposition to boilerplate objections, and observes that no judicial jurisdiction in the United States “authorizes, condones, or approves of this practice[.]” According to Judge Bennett, boilerplate objections are “obstructionist” and this obstructionist discovery practice is a firmly entrenched “culture” in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them.
Because boilerplate objections are part of the “culture,” Judge Bennett declared that “admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense.” Thus, in his view, Judge Bennett wrote that “the imposition of increasingly severe sanctions will help solve the problems.”
Although counsel for both parties agreed that they had a cooperative and professional relationship throughout discovery, Judge Bennett nonetheless spent several pages of his order considering whether to sanction counsel for both parties who prepared the “obstructionist” boilerplate objections. Ultimately, Judge Bennett decided against issuing sanctions in this case. But he “strongly encourage[d] counsel for both parties to improve discovery practices at their own firms and to educate their colleagues and law students on proper discovery responses.”
Prior to this order, Judge Bennett had issued a Supplemental Trial Management Order applicable in cases starting in 2017. In that new order, Judge Bennett specifically states that “[a]ny party subjected to obstructionist conduct in discovery or depositions…shall promptly file a Report to the Court in writing, advising the Court of the specific nature of the alleged discovery abuse, regardless of whether or not the party intends to seek sanctions on its own motion.” In short, parties now have an affirmative obligation to report “obstructionist discovery conduct” to Judge Bennett.
Key Takeaways from Both Orders
The message from both judges could not have been louder or clearer: boilerplate objections are unacceptable and may be sanctioned in future cases. But the disdain for boilerplate objections is not limited to just these two judges. Judges in Kansas have long railed against boilerplate objections, general objections, and conditional objections. See High Point SARL v. Sprint Nextel Corp., 2011 U.S. Dist. LEXIS 103118 (D. Kan. Sept. 12, 2011) (rejecting “unduly burdensome” objections that were not supported by evidence detailing the nature of the burden); Pro Fit Mgmt. v. Lady of Am. Franchise Corp., 2011 U.S. Dist. LEXIS 19152 (D. Kan. Feb. 25, 2011) (criticizing general and conditional objections as “hypothetical and meaningless”); Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016) (citing numerous Kansas rulings railing against conditional and boilerplate objections including cases dating back as far as 2005).
And in the few weeks since Judge Peck penned his order, other federal judges from California, Florida and North Carolina have joined the chorus, albeit with less fervor than Judges Peck and Bennett. In Sream, Inc. v. Hassan Hakim & Sarwar, 2017 U.S. Dist. LEXIS 31491 (S.D. Fla. Mar. 6, 2017), the court quoted directly from Judge Peck’s order that the language “overly broad” and “unduly burdensome” “tells the Court nothing.” In another case, Am. Humanist Assn. v. Perry, 2017 U.S. Dist. LEXIS 38600 (E.D.N.C. Mar. 17, 2017), after noting that “[s]uch boilerplate objections are subject to waiver,” the court threatened sanctions up to default judgment if the defendant’s supplemented discovery responses continue to be deficient. See also Amatrone v. Champion, 2017 U.S. Dist. LEXIS 40800 (N.D. Cal. March 20, 2017) (holding that “boilerplate responses are insufficient.”).
Judge Peck urged counsel to update their “form” files and suggested that parties should avoid “general objections” except in rare instances. Judge Bennett explicitly prohibits boilerplate objections in his Supplemental Trial Management Order. He also provides direct instructions regarding proper discovery responses. The amended Federal Rules require specific objections and detailed privilege logs. To avoid the wrath of federal judges, parties would be wise to avoid the types of boilerplate objections made by the parties in Fischer and Liguria Foods, Inc.
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