South Carolina BAR Journal
SC Lawyer, March 2012, #1.
Effective and Efficient Out-of-State Discovery of Third Parties
South Carolina LawyerMarch 2012Effective and Efficient Out-of-State Discovery of Third PartiesBy Christopher PatonCertain areas of legal procedure can be learned only through practice and experience. For example, there is no statute or procedural rule governing Rules to Show Cause, yet they are a major part of family court practice, and every experienced practitioner knows the proper format for a rule filing, how the respondent should be served, etc. They likely learned the basics of how to prosecute a rule from a more experienced practitioner, perhaps at a CLE, and the finer points from their own experience. Another procedural area where there often is no clear "how-to" set forth in a rule or statute is out-of-state discovery of third parties. In federal court, the procedure is set forth in Rule 45 of the Federal Rules of Civil Procedure, which generally allows an attorney for a party to issue and serve deposition or document subpoenas anywhere in the United States as long as he or she issues the subpoena from the proper district court. See Fed. R. Civ. P. 45(a)(2)-(3). In state court however, the procedure is not so clear and is complicated by the fact that the law of the target state, for the most part, controls the process, and the law varies from state to state. Although more and more states are adopting the Interstate Deposition and Discovery Act promulgated by the Uniform Law Commission in 2007, some states that have adopted the Act appear not to have informed their courts of the development. Thus, attorneys representing parties in state courts often are left to figure out on their own the effective procedure for serving out-of-state subpoenas in a particular state. The purpose of this article is to provide guidance on how to do so efficiently, the goal being to obtain the discovery as quickly as possible at the least possible expense.
The "informal" subpoena
The least expensive method of obtaining document discovery and depositions of third parties located in other states is to send an informal subpoena-a South Carolina subpoena sent to the recipient by mail or certified mail. The cost of an informal subpoena is paper, postage and whatever minimal time it takes to draft the subpoena and a cover letter. An attorney should be very careful, however, not to misrepresent his or her authority to the subpoena recipient, lest he or she improperly "command" (the language used in the South Carolina subpoena form) the recipient to comply with an unenforceable subpoena. Specifically, the attorney should:
note conspicuously on the subpoena (such as in the block stating where the subpoena's recipient is directed to appear or to produce documents) that it should be read in conjunction with...