Utah Bar Journal
Article Title: How to Take an Out-of-State Deposition1
January, 2001Article Title: How to Take an Out-of-State Deposition1Author: Victoria BushnellContact InformationArticle Type:ArticleSo it's finally happened. That big case you've been handling for the last year has come to the end of written discovery, and now you've got to take 100 depositions in the next two months. "No problem," you say. "Uh-oh," says your paralegal. "What?" "Fifty of these depositions are of people who don't live in Utah." So now what do you do? Luckily, you just read an article in the Utah Bar Journal that gave you all the resources and ideas you'll need to conduct those out-of-state depositions without a hitch.I. Where to Start.Whenever you need to depose an out-of-state witness, you have two main problems: how to get proper service of process, and how to make sure the deposition is properly conducted and recorded. The first step is always to determine which court has jurisdiction over the deponent and then call the clerk of that court and ask how that court requires an out-of-state attorney to proceed in taking the deposition of a witness in that court's jurisdiction.Your best chance of finding the out-of-state court with proper jurisdiction and then finding the clerk's phone number is, without a doubt, the internet. Using the witness's address, determine the county in which the witness is located. MapQuest is a good internet source for this information (http://www.mapquest.com). Once you know the state and county in which your witness resides, you can locate the appropriate court.Each of the fifty states maintains a website pertaining to its court system. You can find all of these sites gathered in one convenient location at http://www.courts.net. Once you have found the court with proper jurisdiction over your deponent and the phone number for the clerk of that court, you can call the clerk to find out how that court requires you to proceed.II. Issuance of Subpoena.Having a subpoena issued to your out-of-state deponent is crucial if you want to be able to force that deponent to show up for the deposition. Of course, you can always try contacting the individual directly and asking them to accept a Utah subpoena and/or agree to appear at a designated time and place. This will work if you have a cooperative deponent, but you will have no power to command that deponent to appear, nor will you have any threat of sanctions if they fail to appear.Unlike the Federal judicial system, where any attorney admitted to practice before a Federal court can issue a subpoena to a witness located in any Federal district, attorneys licensed in one state are not able to issue subpoenas in other states. In fact, unlike Utah, attorneys in many states cannot issue subpoenas at all. Therefore, your first step is to determine how to get a subpoena issued that will be enforceable against the out-of-state deponent.While each state has its own peculiar requirements, their systems generally fall into four categories. The first group of states will allow you to serve (and, more importantly, will enforce) a subpoena issued by the Utah court. The second group of states requires that you simply provide a copy of your Notice of Deposition or evidence of an agreement of the parties that the witness shall be deposed, and request that a subpoena be issued. The third group of states requires a writing from the Utah court in which your action is pending, addressed to the court in the state where your deponent resides (the witness's home court), asking that court to issue a subpoena. And the fourth group of states requires that you petition the court in the witness's state, usually by filing a "Miscellaneous Action," and then filing a motion in the witness's state requesting permission to take the out-of-state deposition.1. Uniform Foreign Depositions Act StatesThe Uniform Foreign Depositions Act generally provides, with some variations among the states that have adopted it, as follows:Whenever any mandate, writ or commission is issued from any court of record in any foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony...