The code of Federal Regulations (Title 22, Section 92.85) prohibits Foreign Service Officers from serving judicial documents or appointing others to do so.
A. Service Pursuant to the Hague Convention of 1965
In most cases, the best way to have legal documents served in France is under the terms of the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters (20 UST 361; TIAS 6638). The text of the Hague Service Convention is published in the Martindale-Hubbell Law Directory , Volume VII, Law Digests, under the heading, “Selected International Conventions,” and as an annotation to Rule 4 of the Federal Rules of Civil Procedure in 28 U.S.C.A.
B. How to Request Service
A request for service in France should be prepared on form USM-94, “Request for Service Abroad of Judicial or Extra-judicial Documents.” This form is reprinted as an annex to the Convention in Martindale-Hubbell and is available from any U.S. Marshall”s office. This form is divided into three parts: a request for service abroad, a summary of the documents to be served and a certificate of service.
Requesters should submit duplicates of the completed USM-94 and documents to be served directly to the French Central Authority. The address of the French Central Authority is:
Ministere de la Justice
Bureau de l”Entraide
D4 13 Place Vendome 75042
Paris, Cedex 01, France
The convention requires that the request form be in either English or French. The form is available in a bilingual format, but the French authorities are very reluctant to accept a form completed in English only. For practical reasons, it is recommended that the completed request be accompanied by a French translation of the request, summary and certificate of service parts of the form. The translation does not have to be certified.
C. How Service is Made
Upon receipt of a request, the French Central Authority refers it to the appropriate Procureur General (roughly the equivalent of a U.S. District Attorney) who assigns it to the local police for service. There is no charge for service if made through the French Central Authority and no charge for the return of a certificate of affidavit for service.
D. Optional Means of Service
If an American litigant does not wish to use the free service offered by the French, that office has no objection to service being made by an American or French attorney in France or by a French huissier (bailiff). The names and address of huissiers anywhere in France can be obtained by writing to:
Chambre Nationale des Huissiers de Justice
44 Rue de Douai
75009 Paris, France
France Process Service
An attorney or huissier who has served process can have the affidavit or certificate of service notarized before a U.S. consular officer at the U.S. Embassy in Paris or at one of the U.S. consular offices in France. The fee for notarization is $10.00. Locations of U.S. consular offices in France are as follows:
Office of American Services
2 Avenue Gabriel
75382 Paris Cedex 08
American Consulate General
12 Boulevard Paul Peytral
13286 Marseille Cedex 6
American Consulate General
15 Avenue D”Alsace
67082 Strasbourg Cedex
American Consular Agent
31 Rue du Marechal Joffre
II Obtaining Evidence
Since October 1974, the Hague Convention on the Taking of Evidence Abroad in Civil and Commerical Matters has been in force in France. Arrangements to take evidence in France for use in civil cases before courts in the United States must therefore be made in accordance with the general provisions of that Convention, and be subject to certain specific provisions established by the French Government. The Convention provides three means by which evidence may be taken:-
A. Deposition Before a Local Judicial Authority by Means of Letter Rogatory (Letters of Request)
By these means, a judicial authority in the United States requests the competent French judicial authority to obtain evidence or to perform some other judicial act.
Such letters rogatory should be addressed by the court in the United States to the Bureau de l”Entraide Judiciaire Internationale, Direction des Affaires Civiles et du Sceau, Ministere de la Justice, 13, place Vendome, 75042 Paris Cedex 01, France. Documents must be written in French, or accompanied by a translation in French, and should specify:
1. The authority requesting its execution and the authority requested to execute it (name of the court), or the “appropriate judicial authority in France”;
2. The name and address of the parties to the proceedings, and their representatives;
3. The nature of the proceedings, and all necessary information pertaining to it;
4. The evidence to be obtained
5. The names and addresses of the persons to be examined;
6. The questions to be put to the witnesses, or a statement of the subject matter on which they are to be examined;
7. The documents or other property to be inspected;
8. Whether the evidence is to be given under oath or affirmation, and any specific form of oath that must be used;
9. Whether any special procedure or method should be followed in taking the evidence.
In the absence of special instructions under items (2) and (9), the French court executing the letters rogatory will follow its own normal procedures.
The court issuing the letters rogatory may ask to be informed of the date and place of the proceedings, and parties to the case and their representatives may be present. Judges of the requesting court may also be present at the proceedings.
There are no fees required for the execution of letters of requests; however, the French court may require reimbursement for any fees paid to experts or interpreters, or expenses incurred as a result of use of special procedures requested by the U.S. court.
B. Depositions Before a Diplomatic or Consular Officer
Evidence may be taken in France by deposition before a diplomatic or consular officer of the United States (Articles 15 and 16 of the Convention and Title 28 United States Code, Section 2072). Depositions may only be taken by commission issued by the competent court. Depositions on notice for French nationals or third-country nationals living in France will not be approved by the French Ministry of Justice. The Ministry of Justice also will not approve requests to take evidence as pre-trial discovery for cases not yet pending in court.
The commission should be issued to “any consular officer of the United States assigned to (the city where the Consulate is, or in the case of Paris the Embassy), France” rather than to any specific name or title of consular officer. (See attached sample of a commission).
American consular officers may take depositions from witnesses of American nationality on Embassy or Consulate premises, without special restrictions.
Before evidence may be taken from French nationals or third country nationals residing in France, authorization must be obtained in advance from the Bureau de l”Entraide Judiciaire Internationale of the Ministry of Justice. The Embassy or Consulate must have all the documents pertaining to the case at least 45 days before the deposition is to be held. The following specific provisions must be met:
– The deposition must be held on Embassy or Consulate premises. If participants wish to hold the deposition elsewhere, they must explain fully why it cannot be held on Embassy or Consulate premises, and the Ministry of Justice will decide whether such a request can be approved.
– The deposition must be open to the public.
– The date and time of the deposition must be communicated to the Ministry of Justice in advance.
– The witnesses must be summoned by written notice in French at least 15 days in advance of the deposition date. The written notice, sent by the Consulate or Embassy, must include assurances that appearances are voluntary, that the witnesses may be represented by a lawyer, and that the parties to the case have consented to the deposition. The Embassy or Consulate will request authorization for the deposition from the Ministry of Justice.
There is no charge for the use of a hearing room or for advance preparations. Effective February 1, 1998, there is a statutory fee of $200.00 an hour for consular assistance at the deposition. The estimated fee must be deposited in advance in the form of a certified check in dollars, payable to the U.S. Treasury. Any balance remaining after the service has been performed will be refunded, and any additional due is payable either upon completion of the deposition or, in the case of long depositions, at regular mutually established intervals.
Stenographers and/or Interpreters:
Embassies and Consulates are unable to provide the services of stenographers or interpreters. The interested parties must arrange for a court stenographer to take down the testimony and transcribe it, unless the answers are of the “Yes” and “No” type, and space is provided on the interrogatories for the witness to write brief responses. If the testimony is to be taken in any language other than English, the interested parties must arrange for a court interpreter. A list of qualified stenographers and interpreters is available from the Embassy or Consulate where the deposition will be held.
Ministry of Justice Authorization:
In all cases involving witnesses of French nationality or third-country nationals residing in France, the Embassy or Consulate must have the information or documents listed below at least 45 days before the deposition is to be held. This timing is necessary in order to allow sufficient time to obtain authorization from the Ministry of Justice, provide the required advance notice to witness, and finalize internal arrangements for the deposition. All the documents in the following list must be provided, with French translations of each:-
The commission to take the deposition, referring to The Hague Convention, with precise information on:
– The name of the court
– The name of the judge or issuing authority The names of parties to the case and their representatives
– The names and addresses (and telephone numbers, if available) of all witnesses to be summoned.
– The questions to be put to the witnesses, or a statement of the subject matter on which they are to be examined.
– The name of any of the parties, or their representatives, who plan to attend the deposition.
– The names, address, and telephone numbers of the stenographer and interpreter who have been selected, if any.
– Whether the parties to the case have consented to the deposition, and if not, the reasons for any objection which has been made.
A suggested date for the deposition, if there is a preference, in no case less than 45 days after the Embassy or Consulate receives the above information
A certified check for the estimated consular fees, made out to “U.S. Treasury” is also required.
The Embassy or Consulate will notify all parties planning to attend the deposition of the date set as soon as authorization has been received from the Ministry of Justice.
C. Deposition Before A Person Commissioned By The Court
Evidence may also be taken in France by deposition before any competent person commissioned by a court in the United States. Authorization must be obtained in advance by the individuals participating in the deposition from the Bureau de l”Entraide Judiciaire Internationale of the Ministry of Justice. All information listed under “Ministry of Justice authorization” above should be sent to the Ministry of Justice at least 45 days before the deposition will be held.
In addition, the request for authorization from the Ministry of Justice must include:-
An explanation of the reasons for choosing this method of taking evidence, taking into account the judicial costs involved; and -The criteria for designating the individual commissioned to take evidence.
The Embassy or Consulate does not normally assist in requesting the Ministry of Justice authorization in cases where the commissioner is not a consular officer.
The hearing must be held within the Embassy or Consulate. All of the other provisions and the general procedure described above for depositions before a consular officer must be followed, except that there is no consular fee because the services of a consular officer are not required.
Sample of a Commission to Take a Deposition
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
v COMMISSION TO ANY CONSUL OR VICE CONSUL OF THE UNITED STATES ASSIGNED TO PARIS, FRANCE
(Name) et al.,
You have been duly appointed and are hereby authorized, pursuant to the Articles of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, to cause
(Name) , residing at (Address)
as a witness in the above entitled action pending in this court, under oath (or affirmation) upon the interrogatories and cross-interrogatories annexed to this commission (or orally); to reduce his/her testimony to writing and make such books, papers, or other articles that said witness may produce and identify as Plaintiff”s Exhibits or the Defendant”s Exhibits in the manner indicated in the interrogatories or cross interrogatories (or on oral examination).
When the commission is executed in accordance with the directions attached, the commission and the deposition are to be returned to the Clerk of this court (complete address) with all speed.
WITNESS the Honorable (Name) , Judge of said court, the 12th day of July 1992.
, (Name Clerk)
BY: (Name Deputy Clerk)
France Process Service