SC Lawyer, March 2012, #1. Effective and Efficient Out-of-State Discovery of Third Parties.

• Author: By Christopher Paton

South Carolina BAR Journal

2012.

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 the disclosures made in the lawyer's cover letter, and then make sure that the cover letter attached to the subpoena explains clearly that: * the subpoena is enforceable only in South Carolina, * the recipient is not subject to sanctions by a South Carolina court for not complying, * but that compliance with the discovery request is respectfully requested and would be much appreciated, or that * alternatively, steps can be taken to obtain an enforceable subpoena from the appropriate court in the recipient's home state.John Freeman, Out-of-State Subpoenas, S.C. Lawyer, July/Aug. 2002, at 9. As long as these disclosures are made, there is nothing unethical about sending a South Carolina subpoena to an out-of-state recipient.

Like many things in life, however, you get what you pay for with an informal subpoena. Since it is unenforceable, you are relying on voluntary compliance, and many recipients therefore will ignore it. It can, however, be a useful tool for subpoenaing institutions like banks, which often have backroom offices devoted to complying with subpoenas. These backroom offices generally do not distinguish between enforceable and non-enforceable subpoenas. An informal subpoena is almost always useless against a recipient aligned with the other party in the case, for example, the spouse's accountant or therapist in domestic litigation. In those scenarios an attorney should consider going the formal subpoena route from the beginning.

In determining whether to issue an informal subpoena or to go through the additional time and expense of ensuring that a subpoena is enforceable, an attorney should also consider timing. If it is day one of the discovery period and there is time to later issue an enforceable subpoena if the informal subpoena fails to produce the necessary information, then an informal subpoena may be appropriate. However, an attorney should be aware that it may take many weeks to issue and serve a formal subpoena out of state. It may require a commission order from the South Carolina court, retaining local counsel, a hearing in the local jurisdiction and/or a waiting period before service can be made. If there is insufficient time before the discovery deadline to serve an informal subpoena and then, if it fails, a formal subpoena, the attorney should consider issuing a formal subpoena at the outset.

The "formal" subpoena-the old method

Where enforcement by motion or the threat of enforcement is necessary to procure compliance, a formal subpoena is necessary. In the context of this article, a formal subpoena of an out-of-state recipient is one that is issued by the appropriate court in the recipient's jurisdiction. Of course, a South Carolina attorney seeking discovery in a case pending in Charleston County cannot simply issue a subpoena for a witness located in Ben Hill County, Georgia, from that county's court. Rather, the following procedural steps must be taken for a Ben Hill County subpoena to issue.

First, the attorney must identify the location of the witness or documents. If the documents are not held in Ben Hill County but rather are held in a neighboring county, this must be learned at the outset. Otherwise the attorney may waste time obtaining a commission order for Ben Hill County that is in fact useless. The important point here is learning information that will enable the attorney to go to the South Carolina court for a usable commission order once, as even consent commission orders can take weeks to issue from an administrative judge in a busy circuit, and a second attempt at a commission order can delay the discovery process.

Second, the attorney should call the appropriate local court of general jurisdiction, typically a county court of the county in which the witness or documents are located. In smaller counties, the attorney may speak with the clerk of court directly. In larger and busier counties, there typically will be associate clerks with whom the attorney will speak. The attorney should explain that he needs to speak with someone about domesticating a South Carolina subpoena in the local court's jurisdiction. Some courts will have an instruction sheet they can fax, and some may even have an instruction sheet posted on their website, thereby making a phone call unnecessary. The attorney should also ask if the local clerk can fax samples of commission orders, sometimes called "letters rogatory," that the local court has accepted in the past. These samples can be used as models in drafting a commission order or letters rogatory for issuance by the South Carolina court. If the attorney cannot obtain a model, at the very least he should ensure that he provides a commission order (sometimes called an "order for commission" or "order for writ of commission") to a jurisdiction using this term, and letters rogatory to a jurisdiction using that term. The substance of both are the same: the South Carolina court states that the discovery is necessary and therefore requests that the local court issue document and/or deposition subpoenas. Typically such an order will be issued on consent of the parties.

Third, the attorney should consider whether local counsel should, at this point, be retained. The local court may tell the attorney that local counsel is necessary. For example, some jurisdictions require counsel to appear before a judge in order for an enforceable subpoena to issue. New York is one such jurisdiction. In other jurisdictions, for example where the Interstate Deposition and Discovery Act has been enacted (see below), the attorney may be able to send his South Carolina subpoena directly to the local clerk, who will then issue a local subpoena. In other jurisdictions, a local process server or paralegal can take the commission order to a window at the local courthouse and obtain a signed, blank, local subpoena he may then fill out and serve. All of these methods will produce an enforceable subpoena. Of course, local counsel will become necessary if enforcement of the subpoena by motion is required, even though it may not be necessary for issuance and service.

Dependable and competent local counsel may be found by posting on listservs or by emailing other attorneys who have experience in that jurisdiction. One method that has proven effective for this author is to locate a medium- or large-sized firm with an office in the local jurisdiction and search the attorney biographies on the firm's website for a young associate who would be happy to bring in a small matter on which he or she might bill, without motion practice, $500, whereas a partner at the firm might not bother.

Fourth, the subpoena must be properly served according to the local jurisdiction's rules. If you have retained local counsel, he or she will handle this. If you have not retained local counsel but have submitted your South Carolina subpoena to the local clerk of court for issuance of a local subpoena, the clerk can have the subpoena served by the sheriffs office. Typically the local clerk's office will ask for a check to cover the fee for the sheriffs service along with submission of the South Carolina subpoena. Of course, having the subpoena served by a sheriff rather than a process server may also help to induce compliance by some recipients.

The formal subpoena-the new method

The Uniform Law Commission issued the Interstate Deposition and Discovery Act in 2007 to provide "an efficient and inexpensive procedure for litigants to depose out of state individuals and for the production of discoverable materials that may be located out of state." The Nat'l Conference of Comm'rs on Uniform State Laws, Interstate Depositions Discovery Act Summary (2012), http://www.nccusl.org/ActSummary.aspx?title=Interstate Depositions and Discovery Act. The key feature of the Act is that it allows the attorney seeking out-of-state discovery to serve a formal, enforceable subpoena without going before a judge in either the state where the action is pending or the state where discovery is sought. The attorney sends his or her subpoena to the appropriate clerk of court in the recipient's state, and the clerk issues a subpoena from his or her court incorporating the terms of the original subpoena. At the time of writing this article, the Act had been enacted in Colorado, Delaware, the District of Columbia, Idaho, Indiana, Kansas, Maryland, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, Oregon, South Carolina, Tennessee, Utah and Virginia, and had been introduced in Georgia, North Dakota, Pennsylvania and Vermont. Unfortunately, enactment does not necessarily mean that all local courts in that state follow the Act's provisions. In two of the states in which the Act had been enacted, this author has contacted local courts only to be told a commission order from South Carolina was required. Thus a call to the local court should always be an initial step in determining how to serve an enforceable subpoena in that jurisdiction. On a positive note, this author was able to serve a subpoena pursuant to the Act in one state where the Act had been introduced but not yet enacted. As time goes by and courts continue to realize that dockets and judges' time should not be taken up with pro forma discovery procedures, it is expected that the Act's procedures will become more understood and utilized.

Conclusion

The purpose of this article is to explain how to effectively and efficiently obtain out of state discovery from third parties with the South Carolina attorney handling as much of the process as is possible. There are also services in some states that can handle the process for a fee. It may well be that those services are the most efficient method of obtaining out of state discovery in some cases. But where those services do not exist or are not cost effective, the above presents a method that should ensure that a South Carolina attorney obtains discovery from out-of-state, third-party sources as efficiently as possible.

The author is an associate at Rosen Law Firm, LLC, where he represents clients primarily in domestic and personal injury litigation.