Obtaining Out-of-state Evidence for State Court Civil Litigation: Where to Start?
| Publication year | 2011 |
| Pages | 0018 |
by Rebecca Phalen
You are working on the discovery plan for your case, brainstorming the evidence that you need to prosecute or defend your case. Even though your case is pending in a Georgia state court, your discovery plan is likely to list witnesses or evidence outside Georgia.
You know that a subpoena issued from a Georgia state court has no power outside the state lines.[1] But you also know that you can use deposition testimony when the deponent is out of reach of a subpoena,[2] and you can use documents that are otherwise admissible and have the proper foundation. You can reach witnesses and documents outside Georgia through an enforceable subpoena. Each state has a procedure in place to allow you to compel testimony or the production of documents located in that state. This guide will start you on the right path to getting the evidence you need wherever it is located.
What procedure does each state follow to issue a subpoena for cases pending elsewhere?
In federal courts you start with one rule, Rule 45, and the attorney in the underlying litigation can sign a subpoena that is to be served in another district.[3] But for litigation in state courts, each state has its own procedure for issuing and enforcing a subpoena for cases pending outside that state. Sometimes the state's procedure varies by county.[4] Before you can compel a witness to provide testimony or produce documents in another state, you must find and follow that state's procedure.
The trend among the states is towards adopting the Uniform Interstate Depositions and Discovery Act (UIDDA), but not all states have adopted it yet. Some states, like Georgia, may require the attorney in the out-of-state action to present a commission to the clerk in the state where the witnesses or documents are located before the clerk will issue the subpoena. Other states require an application to be filed as a civil action, while still other states have procedures everywhere in between. These procedures are outlined below with cites to each state's statutes or rules.
Uniform Interstate Depositions and Discovery Act
The UIDDA permits a party to submit the "foreign subpoena" (the subpoena from the underlying litigation) to the clerk of court where the discovery is sought.[5] The clerk must then issue a subpoena for service, and that subpoena must incorporate the terms used in the foreign subpoena and list the contact information for all counsel of record in the underlying litigation.[6]The UIDDA eases concern about the unauthorized practice of law by clarifying that requesting the issuance of the subpoena does not constitute an appearance before the court.[7] Under the UIDDA, the subpoena is to be served in accordance with the discovery state's law.[8]It also provides the procedure to challenge or enforce the subpoena: an application is to be filed in the discovery state with the clerk of court that issued the subpoena.[9]
Even if a state has adopted the UIDDA, you must review that state's version. A couple of states have added different reciprocity requirements.[10] For example, Utah's UIDDA only applies if the other state has adopted "provisions substantially similar to this uniform act."[11] Because Georgia has not (yet) adopted the UIDDA, Georgia attorneys must look to the alternative process in Utah.[12]Virginia's reciprocity requirement, however, allows a "predecessor uniform act" to suffice.[13] Since Georgia has adopted the Uniform Foreign Depositions Act, then Georgia attorneys should be able to use Virginia's UIDDA procedure.
The states that have adopted the UIDDA, or a substantially similar statute, are: California,[14]Colorado,[15] District of Columbia,[16]Delaware,[17] Idaho,[18] Indiana,[19]Kansas,[20] Kentucky,[21] Maryland,[22]Mississippi,[23] Montana,[24] Nevada,[25]New Mexico,[26] New York,[27] North Carolina,[28] South Carolina,[29]Tennessee,[30] Utah,[31] Virgin Islands[32]and Virginia.[33] Earlier this year, bills to enact the UIDDA were introduced in Georgia[34] and Pennsylvania,[35]but those bills did not pass.
In Georgia, the bill to adopt the UIDDA passed the House, but the Senate passed an amendment to the bill to bifurcate it so that Part I of the bill would be in effect until the effective date of the revised evidence code, and Part II—with updated code citations—would be effective upon the effective date of the revised evidence code.[36]This bifurcation would permit the UIDDA to remain in effect seamlessly without any needed housekeeping measures. But when the bill as amended went back to the House, the House proposed an amendment to introduce a reciprocity provision so that the UIDDA process could only be used if the state where the underlying case is pending has adopted a similar procedure.[37] Interestingly, Georgia's proposed version of the UIDDA would keep a modified version of the current statute as an alternative procedure so that there would still be a mechanism available to out-of-state attorneys should a state have not adopted a law governing the underlying action similar to the UIDDA.[38]The House passed the amendment with the reciprocity provision, so the Senate will likely address this amendment next year.
UFDA and Subpoenas Issued with a Commission
The Uniform Foreign Depositions Act (UFDA) remains in place in several states. It is a predecessor act of the UIDDA, adopted by the National Conference of Commissions on Uniform State Laws in 1920. It states:
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 of a witness in this state, the witness may be compelled to appear and testify in the same manner and by the same process as employed for taking testimony in matters pending in the courts of this state.[39]
The states that still have the UFDA, or a similar statute, are: Florida,[40] Georgia,[41]Louisiana,[42] Nebraska,[43] New Hampshire,[44] Ohio,[45] Oregon,[46]Rhode Island,[47] South Dakota,[48]Texas[49] and Wyoming.[50]
If your witness is located in one of these states, then your first step should be to call the clerk of court in the county or parish where the witness is located. The clerk may require a notice of deposition, a commission or even a miscellaneous action to issue the subpoena. It is unlikely that local counsel is required for these states (with the exception of Oregon)—at least until the subpoena needs to be enforced.
Issued Without Court Intervention
A few states allow either the clerk of court or another person to issue the subpoena without filing a separate action. In these states, because you are not entering an appearance before the court— requesting the subpoena is more of an administrative task—you should not be required to hire local counsel.[51] Only when you need the court to enforce the subpoena will you need local counsel.
These states are: Arkansas,[52]Connecticut,[53] Iowa,[54] Mass-achusetts,[55] Minnesota[56] and North Dakota.[57] Some of these states only require a notice of deposition from the foreign state. Other states only need evidence that the deposition is permitted under the foreign state's law, and a commission may be the way to meet that requirement. Because the judge in the discovery state is not familiar with the facts of the underlying litigation, the judge in the discovery state may be more likely to enforce a subpoena that was accompanied by a commission signed by the judge familiar with the litigation. A call to the clerk is recommended, but you should first review the applicable statute or rule so that you are an informed caller.
Issued with Court Involvement
Other states, however, require greater court action before they will issue the subpoena. Some will require you to file an application or motion in the discovery state's court before the subpoena can issue, and an application or motion will require local counsel. Those states are: Alaska,[58] Arizona,[59] Hawaii,[60]Illinois,[61] Maine,[62] Massachusetts,[63]Michigan,[64] Missouri,[65] New Jersey,[66] Pennsylvania,[67] Vermont[68]and West Virginia.[69] The statutes in some other states, however, seem to require court action, but not necessarily that you file an application or petition. Those states are: Alabama,[70]Oklahoma,[71] Washington[72] and Wisconsin.[73] Given the unclear procedure in those states, you should call the clerk of court to determine their procedure. If that call is not enlightening, then local counsel should be engaged.
Should You Hire Local Counsel?
Even if local counsel is not required, if you anticipate any resistance to the subpoena, then you may gain a strategic advantage by hiring local counsel before you seek the subpoena. Hiring local counsel, and including that name on the subpoena, will alert the deponent and your opposing counsel that you have counsel ready to enforce the subpoena.
Not only can hiring local counsel give you a strategic advantage, but also local counsel can answer several questions related to the mechanics and logistics of issuing and serving a subpoena out of state:
■ What methods of service are permitted?
■ What are the witness and mileage fees?
■ How long will it take to have the subpoena issued?
■ Does the state require a specific notice period for the subpoena?
■ Are there any concerns about the type of information sought, especially in cases in which protected health information is requested?[74]
■ Is the commission that you intend on requesting from the Georgia court sufficient?
■ Who are reputable process servers and court reporters?
Local counsel can also advise you of any requirements that you be admitted pro hac vice to take the deposition[75] and any other unauthorized practice of...
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