Can You Subpoena a Chinese Company? What You Need to Know About China Discovery

In cross-border litigation involving mainland China-based defendants, U.S. litigation lawyers often mistake the ability to issue a subpoena for the ability to enforce it. A subpoena backed by a U.S. court carries real consequences inside the United States, but it has no independent compulsory force inside mainland China.

A U.S. court can issue orders, compel parties before it, sanction misconduct, and draw adverse inferences in appropriate cases. What it cannot do is make Chinese authorities enforce a U.S. subpoena as though it were an order from a Chinese court.

Discovery against a Chinese defendant already before the court is one problem. A Rule 45 subpoena to a non-party in mainland China is another. Discovery aimed at a U.S. affiliate, bank, marketplace, distributor, freight forwarder, payment processor, or inspection company is a third.

For U.S. litigators, the question is not simply whether a subpoena can be issued. It is whether noncompliance produces consequences that matter, and whether the case can be proven without depending on broad, compulsory discovery from mainland China.

Jurisdiction, Leverage, and the Limits of Enforcement

A U.S. subpoena directed at a mainland China company carries no direct compulsory power in China. It is a foreign litigation document, not an enforceable Chinese court order.

A Chinese company still cannot ignore a U.S. case risk-free. If the company is a party before the U.S. court, or if it has U.S. assets, U.S. affiliates, U.S. bank accounts, U.S. platform accounts, U.S. customers, or other U.S.-linked pressure points, the court has real tools. Depending on the facts, those include monetary sanctions, adverse inferences, issue sanctions, evidence preclusion, fee awards, default-related remedies, and pressure on U.S.-based entities.

A court order matters if the defendant has something to lose in the United States. It matters far less if the defendant has no U.S. assets, no U.S. presence, no platform exposure, and no commercial reason to cooperate.

I’ve represented a number of foreign defendants and parties in U.S. courts, and one of the more uncomfortable moments is  explaining, in substance, that the client does not see a practical reason to comply with the judge’s order. That is not a speech any lawyer enjoys giving, especially in front of a judge. But it is a reality U.S. litigators need to understand. A court order is powerful when the target has assets, operations, customers, reputation, or future business at risk in the United States. Without those pressure points, it may end up being a waste of time and money.

In party discovery, the question often becomes whether responsive documents are within the party’s possession, custody, or control, even if those documents are physically located in China or held by an affiliate. If a Chinese parent company directs the U.S. subsidiary’s conduct, shares systems, controls document access, or uses overlapping personnel, a control argument exists. If the U.S. subsidiary merely buys goods from the Chinese company at arm’s length, that argument is much weaker.

Before spending heavily on a mainland China discovery fight, counsel should map the evidence and enforcement landscape. What evidence has the client already preserved? What can be subpoenaed outside China? What assets or accounts matter to the defendant? What third parties touched the transaction? What evidence exists outside mainland China?

Those questions should shape the Rule 34 requests, Rule 45 subpoenas, Hague Evidence analysis, sanctions strategy, and settlement posture.

Distinguishing Hague Service from Evidence Gathering

Lawyers sometimes conflate the Hague Service Convention with the Hague Evidence Convention. Both address cross-border procedural steps, but they serve different functions. Service under the Hague Service Convention helps get the defendant properly served in the U.S. case. It does not, by itself, create discovery rights in mainland China.

China is a party to the Hague Service Convention. Proper Hague service matters, especially if the plaintiff later needs a default judgment recognized, enforced, or used strategically. A China-based defendant can ignore the lawsuit, wait for a default judgment, and challenge service only when the plaintiff tries to enforce the judgment or use it against assets, affiliates, customers, platforms, or counterparties.

In mainland China, service generally must proceed through China’s Central Authority process. That process is slow, formal, and document-sensitive, but shortcuts become expensive later. China has objected to Article 10 service methods, including service by postal channels. Shortcuts at the service stage complicate default judgments, asset attachment, and enforcement strategy.

Proper service gets the defendant served in the U.S. case, but evidence gathering is a separate fight. Hague service on a Chinese company is usually a solvable procedural problem, though it can be slow, expensive, formal, and translation-sensitive. Hague Evidence requests are far less predictable. They are not a back door to U.S.-style discovery, and they rarely produce the kind of broad document production U.S. litigators expect.

Hague Evidence Requests and China’s Article 23 Limitation

When U.S. litigants need evidence located in mainland China, the formal route usually runs through the Hague Evidence Convention or, in some circumstances, letters rogatory. Both are formal, government-to-government or court-to-court mechanisms. Neither resembles ordinary U.S. party discovery.

Hague Evidence requests are formal Letters of Request transmitted for execution through the Central Authority system. For evidence located in mainland China, the request ultimately must be directed to China’s designated Central Authority for execution under Chinese procedures. That process gives litigants a recognized channel for cross-border evidence requests in civil and commercial matters, but in China cases, the practical limits are severe.

The key limitation is China’s Article 23 declaration. China rejects broad common-law pretrial document discovery under the Hague Evidence Convention, including the kind of sweeping “all documents concerning” requests U.S. litigators use in domestic cases. China generally considers only requests for specific, clearly identified documents that have a direct and close connection to the case.

A request for “all communications relating to quality issues” is unlikely to get far. A request for a specifically identified inspection report, test certificate, purchase order, bill of lading, customs document, corporate filing, or quality-control record tied directly to a disputed shipment has a better chance, though timing and compliance remain uncertain.

A proper request needs to be narrow, specific, accurately translated, procedurally compliant, and tied directly to issues in the case. Counsel should also think about authentication, admissibility, and whether the requested material will arrive in a form useful in the U.S. proceeding.

Even a well-drafted Hague Evidence request can be slow, partial, or unsuccessful. Chinese authorities do not treat foreign civil discovery the way American courts do. Broad requests for corporate records run into sovereignty concerns, data restrictions, state secrets issues, blocking rules, and practical resistance.

Formal Hague Evidence requests are not pointless. In some cases, they are necessary. In others, they help show the U.S. court that a party tried the formal route before seeking sanctions, adverse inferences, or alternative discovery. But they rarely substitute for domestic U.S. discovery.

U.S. courts do not always require parties to use the Hague Evidence Convention before domestic discovery tools. When China is involved, courts pay close attention to international comity, the importance of the evidence, the specificity of the request, the availability of alternative means, the hardship of compliance, and whether the resisting party acted in good faith.

If the case depends on fast, broad, compulsory production from mainland China, counsel should reassess the case theory, the evidence plan, and the client’s settlement leverage before spending heavily on discovery fights.

Sovereignty Barriers to Mainland China Depositions

Mainland China depositions should be treated first as a sovereignty issue, not as a scheduling exercise. Counsel should not assume they can fly to mainland China, rent a hotel conference room, hire an interpreter, and take testimony for use in a U.S. proceeding merely because the witness is willing to appear.

That caution comes from our own experience. My law firm has handled dozens of cross-border litigation matters involving Chinese parties. We have deposed Chinese parties and witnesses remotely, in South Korea, and in Hong Kong before it became China-fied. But we have never taken or attended a deposition of anyone physically located in mainland China. This reflects the legal and practical risks of evidence-taking on Chinese soil.

Unauthorized evidence-taking in mainland China creates serious China-side legal risk for the lawyers, the witness, the interpreter, the court reporter, and others involved in the process. Remote video does not automatically solve the problem. A remote platform does not change the witness’s physical location or eliminate China’s sovereignty concerns. Some Chinese witnesses still agree to appear remotely, but that willingness does not resolve the China-side legal risk.

Before scheduling testimony involving a witness in mainland China, consult your China counsel and current U.S. State Department guidance on depositions and evidence-taking abroad. The answer differs depending on whether the testimony is voluntary, compelled, remote, consular, or connected to a foreign court request.

Note that Hong Kong should not be treated as mainland China for these purposes, and mainland China should not be treated as Hong Kong. The evidence-taking, service, data, and enforcement analysis still differs materially.

If the witness is outside mainland China, the analysis changes. A former employee living in California, a sales agent in Singapore, a distributor in Europe, or a logistics employee in Hong Kong can be reachable in ways a mainland witness cannot. Geography, employment status, residency, subpoena power, visa status, employer control, document access, and willingness to cooperate all matter.

China’s Data Laws and Discovery Refusals

Chinese companies and witnesses sometimes refuse to cooperate for reasons that have nothing to do with the merits of the U.S. case. Diplomatic sensitivity is only part of the problem. Domestic legal exposure often matters more to the company and its employees.

Article 36 of China’s Data Security Law restricts providing data stored in China to foreign judicial or law enforcement bodies without approval from the competent Chinese authorities. China’s Personal Information Protection Law imposes similar concerns for personal information, including cross-border transfer and disclosure issues.

For a mainland company or executive, handing over internal files, employee data, customer data, WeChat histories, technical records, source code, quality records, or business communications in U.S. discovery creates China-side legal risk. Depending on the data and the facts, that risk includes regulatory penalties, administrative consequences, state secrets concerns, national security issues, and individual exposure for employees and executives.

These laws do not make every China-based document impossible to produce, but they do require U.S. litigators to be careful before treating every refusal as gamesmanship. The resisting party could be exaggerating the legal barrier, but the barrier can also be real. Either way, counsel should test the objection, demand specificity, consider alternative sources, and build a record for the U.S. court.

A Chinese employee who knows exactly what happened can still refuse to sign a declaration, sit for a deposition, or export WeChat records. A supplier may prefer commercial damage to regulatory attention. A manager may fear local consequences more than a U.S. judge’s frustration. To you, the person is a critical witness. To the witness, cooperating means employment, regulatory, or personal risk at home in China.

Building the Case Around Accessible Evidence

The discovery plan should start with a blunt litigation question: what can we prove if the mainland China defendant produces nothing useful?

Start with what your client already has. Issue a litigation hold early and preserve contracts, purchase orders, invoices, inspection reports, emails, WeChat messages, photos, videos, payment records, shipping records, product samples, packaging, labels, internal notes, and communications with customers, brokers, freight forwarders, inspectors, distributors, and payment processors.

Phones get replaced, WeChat histories disappear, employees leave, samples are discarded, packaging is thrown away, and bank or logistics records become harder to retrieve. In China-related cases, early preservation is often the difference between a usable case and a story the client can no longer prove.

The discovery plan should shift quickly from demanding cooperation from the mainland defendant to building the record through the offshore evidence trail: banks, freight forwarders, customs brokers, inspection companies, testing labs, marketplaces, and the records your client already holds. These sources will not tell the whole story, but they often prove the points that matter: shipment, payment, defect, notice, causation, damages, market contacts, and credibility.

For online evidence, counsel should consider authenticated screenshots, web capture tools, preservation letters, marketplace subpoenas, and records from payment processors or logistics providers. A screenshot taken too late, or without metadata, is less useful than the client assumes.

In a defective product case, the Chinese manufacturer may produce little or nothing. The U.S. testing lab may have failure analysis. The inspection company may have kept pre-shipment photos. Shipment records sit with the freight forwarder, entry documents with the customs broker. The buyer fielded the customer complaints. The bank holds the payment trail. That evidence can prove defect, notice, causation, damages, and credibility without broad production from China.

In a trade secret case, the decisive evidence often does not come from the Chinese company’s servers. It comes from access logs, download histories, former employee communications, Git or source-code repositories, product teardown evidence, customer confusion, marketplace listings, pricing anomalies, or communications showing knowledge and improper use.

Translation Issues in China-Related Evidence

Chinese-language evidence often turns on tone, shorthand, industry usage, regional phrasing, and context. A literal translation can be accurate word-for-word and still miss the commercial meaning.

I have seen China-related examinations turn on a disputed translation even when both sides had Mandarin-fluent counsel. The fight was not over dictionary meaning. It was over commercial meaning, context, tone, and what the witness was actually conceding. Depositions involving Chinese-speaking witnesses usually take at least twice as long as English-language depositions, even before accounting for translation disputes, cultural context, and document interpretation.

Witnesses often deliver hard admissions in soft language. Suppliers may acknowledge a defect or delay indirectly. A WeChat message can look harmless in English but damaging in Chinese because of tone, timing, or commercial context.

Use translators and interpreters who understand the industry and the dispute. Have bilingual counsel review the documents that matter before they are used in pleadings, declarations, deposition outlines, injunction papers, or summary judgment briefing. Keep the original Chinese, track translation choices, and avoid treating a quick business translation as litigation-ready.

Contract Drafting Before the Evidence Fight Exists

The best China discovery strategy often starts at the contracting stage. If the contract requires production records, inspection access, sample retention, quality-control documentation, subcontractor disclosure, tooling access, and specified communication channels, the buyer does not have to depend as heavily on broad discovery after the relationship collapses.

Draft the contract so the evidence exists, can be accessed, and can be used. The contract should address production records, inspection access, subcontracting approval, sample retention, component documentation, quality-control records, tooling access, corrective-action procedures, and required communication channels. Record-retention clauses should specify what must be kept, in what form, for how long, and what happens if the supplier fails to preserve those records. Audit rights should be realistic, not decorative.

For manufacturing relationships, tooling, molds, samples, design files, bills of materials, quality records, inspection records, subcontractor information, and production change notices should be addressed before the first purchase order is issued.

Governing law, forum selection, arbitration, jurisdiction, venue, interim relief, injunctive remedies, liquidated damages, fee-shifting, and enforcement strategy should be drafted together. A clause that looks sophisticated in a U.S. contract is useless if it does not produce leverage where the counterparty has assets, operations, customers, or reputational exposure.

In some cases, arbitration gives the client a better enforcement path than U.S. litigation. In others, U.S. litigation is the better choice because it gives access to third-party discovery, U.S. assets, U.S. customers, or platform leverage. The right answer depends on where the evidence and assets will be when the dispute starts.

Dispute resolution clauses can be far more complicated than clients realize. See A Guide to Dispute Resolution Clauses in International Contracts and A Guide to Dispute Resolution Clauses in International Contracts, Part 2. I am not exaggerating when I say we have drafted flat-fee contracts where we spent more time on the dispute resolution clause than on the rest of the contract combined. Every few months, I call a lawyer friend to talk through an obscure dispute resolution issue. I cannot remember the last time I had to do that with any other contract provision. We also sometimes pull together three or four of our own lawyers to discuss this one clause.

Common Mistakes in China Discovery

U.S. litigators make four recurring mistakes in China-related cases. First, they assume a subpoena equals leverage. Second, they assume proper service means discovery will follow. Third, they assume a remote deposition avoids China’s evidence-taking restrictions. Fourth, they wait too long to preserve client-held evidence, WeChat messages, product samples, shipping records, online evidence, and third-party records outside China.

Each mistake is avoidable, and each can damage the case. Treat China discovery as part of a broader litigation and enforcement strategy.

A Practical China Discovery Checklist for U.S. Litigators

Before assuming mainland China discovery will work, counsel should answer these questions:

1. Is the Chinese company a party, a non-party, or connected to a U.S. affiliate?
2. Does the U.S. court have personal jurisdiction over the relevant entity?
3. Are the documents within a party’s possession, custody, or control?
4. Are responsive records located in mainland China, or are copies held offshore?
5. Are there U.S. banks, customers, marketplaces, freight forwarders, customs brokers, inspection companies, payment processors, insurers, distributors, or former employees with relevant records?
6. Would China’s data laws, state secrets rules, blocking restrictions, or national security concerns affect production?
7. Is a Hague Evidence request realistic, or would it be too broad, slow, or unlikely to succeed?
8. What sanctions, adverse inferences, issue sanctions, evidence preclusion, fee awards, or default-related remedies could be sought if the party refuses to cooperate?
9. What evidence can be preserved immediately from the client, devices, WeChat, emails, samples, packaging, shipping records, payment records, and online sources?
10. Does the case theory survive if the mainland China party produces nothing useful?

China Discovery FAQ

Can a U.S. lawyer subpoena a Chinese company?

Yes, if the U.S. rules allow it. Enforcement is the harder question. A subpoena directed at a mainland China company with no meaningful U.S. presence or pressure points often has little practical effect.

If the Chinese company is already a party before the U.S. court, the court has more tools available. If the target is a non-party located only in mainland China, direct enforcement is far more difficult.

Can a U.S. court order a Chinese party to produce documents located in China?

Yes, within limits. A U.S. court can order a party before it to produce documents within its possession, custody, or control, even when those documents sit abroad.

China’s data laws, blocking rules, state secrets concerns, and comity issues affect whether compliance is possible and what consequences should follow from noncompliance. Do not assume every China-based document is impossible to produce. Do not assume a U.S. order eliminates China-side legal risk.

Can a U.S. court sanction a Chinese company for refusing discovery?

Yes, when the facts support it and the company is properly before the court. Sanctions, adverse inferences, issue preclusion, evidence preclusion, fee awards, and default-related remedies are indirect pressure tools.

The court’s willingness to impose sanctions depends on the procedural history, the importance of the evidence, the specificity of the request, the party’s conduct, the availability of alternative sources, international comity, and whether compliance was actually possible.

What if the Chinese company has a U.S. affiliate?

A U.S. affiliate can be a useful discovery target, especially if it participated in the transaction or has access to relevant systems or records. The analysis depends on corporate structure, operational control, document access, shared systems, agency arguments, overlapping personnel, reporting lines, and the affiliate’s role in the transaction. In some cases, the U.S. affiliate is the best discovery target. In others, it is a dead end.

Should I try the Hague Evidence Convention first?

Use the Hague Evidence Convention when the evidence is specific, important, and not available elsewhere. It can also help show the U.S. court that the requesting party tried formal channels before seeking sanctions or alternative relief.

But it is rarely a fast or broad substitute for U.S. discovery. China’s Article 23 declaration makes broad common-law pretrial document discovery difficult. Requests should be narrow, document-specific, translated, procedurally compliant, and tied directly to issues in the case.

Can I depose a witness in mainland China?

Not without serious caution. Depositions in mainland China for use in foreign proceedings raise sovereignty and legal issues, even when the witness is cooperative. Counsel should not assume they can fly to China, rent a conference room, hire an interpreter, and conduct a deposition merely because the witness is cooperative.

Remote depositions do not eliminate the issue. If the witness is physically sitting in mainland China, the location still matters.

Do China’s data laws affect U.S. discovery?

Yes. China’s Data Security Law and Personal Information Protection Law restrict the provision of China-stored data and personal information to foreign judicial or law enforcement authorities without approval from Chinese authorities.

These laws do not make production impossible in every case, but they affect strategy, timing, risk, and sanctions arguments. Do not assume a Chinese company or witness can safely comply with a U.S. discovery request just because a U.S. court ordered it.

What evidence should U.S. litigators look for outside China?

Look for the offshore evidence trail: banks, freight forwarders, customs brokers, inspection companies, testing labs, marketplaces, and records already in the client’s possession.

In many China cases, those sources prove shipment, payment, defect, notice, causation, damages, jurisdiction, market contacts, knowledge, and bad faith without requiring broad document production from China.

Is a default judgment against a Chinese company useful?

It can be useful if it fits the enforcement strategy. A default judgment has value if the defendant has U.S. assets, U.S. receivables, platform accounts, customers, affiliates, insurance, or reputational exposure. It can also matter if the defendant has assets in a country that readily enforces U.S. judgments.

But foreign assets are not always easy targets. Often, what the Chinese company has abroad is a subsidiary or affiliate, not assets that can be seized to satisfy a judgment. A default judgment is useful only if there is a realistic path to turning it into money, leverage, or some other practical result. See Enforcing U.S. Judgments in China: What Judgment Creditors Need to Know.

Build Your Discovery Plan Around Enforcement Reality

A motion to compel is only useful if it moves the case forward. A court order can support sanctions, establish obstruction, create settlement leverage, and set up adverse inferences, issue sanctions, evidence preclusion, fees, or default-related relief. But a paper victory is not proof. If the order does not produce evidence, and if sanctions do not move the defendant, you still need a case that can be proven through other sources. Your discovery strategy should be tied to trial proof, settlement leverage, enforcement prospects, and the client’s commercial objectives.

Evidence from banks, customers, marketplaces, freight forwarders, and inspection companies does more than prove the case. It shows the defendant that noncooperation will not keep the facts hidden. That often matters more than another discovery order the defendant has no practical reason to obey. A realistic China discovery plan has to be built around enforceable leverage and accessible evidence.