Issuing Out-of-State Subpoenas for Deposition


By Melissa K. Hinote, CP

Legal assistants, paralegals, and legal secretaries are often expected to be experts on procedural rules and process. Regular experience with each individual’s state’s statutes and rules of court helps us efficiently arrange for issuance and service of subpoenas and other legal documents. However, sometimes the target for service exists outside of the normal jurisdiction of our attorneys. Sometimes the entity we are trying to serve is located in a completely different state. These situations can present a procedural nightmare, but knowledge of the broad similarities among various groups of states can help streamline the subpoena process.

When issuing an out-of-state subpoena for a deposition, the Uniform Interstate Depositions and Discovery Act (UIDDA) may come in handy. The UIDDA was recommended in 2007 by the National Conference of Commissioners on Uniform State Laws (NCCUSL). It was preceded by the 1920 Uniform Foreign Depositions Act (UFDA) and the 1962 Uniform Interstate and International Procedure Act (UIIPA), the latter being intended to supersede the former. However, in 1977, the NCCUSL withdrew the UIIPA from recommendation, claiming that it was obsolete. Since that time, and before the creation of the 2007 UIDDA, no other uniform interstate deposition act had been suggested.

As of 2007, 13 states and territories had adopted the UFDA, while only 6 states and territories had adopted the UIIPA. The NCCUSL found that there was little consistency among states regarding who may seek a deposition, what matters must be covered in a subpoena, the procedure for obtaining a deposition subpoena, and the procedure for serving a subpoena for deposition duces tecum, among other things. The NCCUSL wanted to create a cost-effective, fair uniform act that required little judicial oversight. The result was the 2007 UIDDA.

The UIDDA itself is very simple and is comprised of nine short sections. The operative sections (Sections 3-6) relate to issuance of a subpoena; service of a subpoena; the deposition, production and inspection; and application to the court for motions to enforce, quash or modify the subpoena, among other things.

Section 3, Issuance of Subpoena, requires a party to submit a foreign subpoena to the clerk of court in the county, district, circuit, or parish where discovery is sought within the state. The clerk of that court is then directed to issue a subpoena to the person upon which the foreign subpoena is directed. The issued subpoena must incorporate the terms used in the foreign subpoena and must contain the contact information of all counsel and unrepresented parties to the proceeding.

Section 4, Service of Subpoena, states that the subpoena must be served in compliance with the discovery state’s applicable rules for service of subpoenas. Section 5 applies the discovery state’s own rules regarding the deposition testimony, production, and inspection to all subpoenas issued under Section 3. Section 6 resolves a jurisdictional question regarding which state will settle motions for protective orders, motions for enforcement, and motions to quash. According to this section, the discovery state maintains jurisdiction over such motions and objections.1

The UIDDA has been adopted by the following states: California, Colorado, District of Columbia, Idaho, Indiana, Kansas, Kentucky, Maryland, Montana, New Mexico, New York, South Carolina, Tennessee, Utah, and Virginia. It is slated for a 2010 introduction in Delaware, Georgia, Mississippi, Pennsylvania, and the U.S. Virgin Islands.2

If you are issuing an out-of-state subpoena to a person in any one of these states, you already have a head start on the basics. The next step is to check the individual state’s adoption of the UIDDA to see whether it was adopted in full or in part. The individual state’s adoption of the UIDDA should also contain references to state-specific statutes and rules regarding service of and compliance with subpoenas.

If you are issuing an out-of-state subpoena to a person or entity not located in one of the above-referenced states, the process becomes only slightly more difficult. Some states that have not adopted the UIDDA may have similar statutes dating back to the days of the UFDA. States that currently adhere to their adoptions of the UFDA will likely possess statutes with language similar to the following:

“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.”

Some states that never adopted the UFDA may still possess statutes using this or similar language. Though it differs from the UIDDA, the UFDA language is also helpful in creating a simpler system for issuing out-of-state subpoenas.

While many states utilize the UIDDA, the UFDA, or similar language, many others may require you to have your local court issue Letters Rogatory or to hire an attorney licensed to practice law in that state to file an action with the court there.3

Whether the discovery state has adopted the UIDDA or the UFDA, possesses a similarly written statute, or none of the above, the first place to start when learning the process for out-of-state subpoena procedure is state statute. The second step is to call the clerk of the local court you will use for issuing the subpoena. The clerk’s office will be able to explain exactly what documents you need, how many copies of each are required, and whether any fees apply.

Once you have familiarized yourself with the rules of the discovery state and the local court you will use, prepare the subpoena and any other necessary documents and get ready to proceed.

Endnotes

1 Uniform Interstate Depositions and Discovery Act (2007) http://www.law.upenn.edu/bll/archives/ulc/iddda/2007act_final.htm

2 http://nccusl.org

3 Fitlow, Victoria. “How to Take an Out-of-State Deposition.” Utah Bar Journal (Feb/Mar 2001). http://www.utahbar.org/sites/litigation/html/how_to_take_an_out-of-state_de.html

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  1. #1 by George E. Bourguignon, Jr. on March 12, 2012 - 2:00 pm

    Very well presented post on a topic that frustrates the impatient litigator and needs to be read from time to time. Thank you.

  2. #2 by Margaret Boyle on March 28, 2013 - 12:54 pm

    FYI, Washington State adopted the UIDDA in 2012.

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