An Introduction to Obtaining Out-of-State Discovery in ...

1 An Introduction to Obtaining Out-of-State Discovery in State and Federal Court Litigation by Brenda M. Johnson I. f it hasn't happened already, at some point a local attorney, without court intervention, and in your practice you will be faced with the some will issue a subpoena upon proof that an prospect of Obtaining Discovery from a third appropriate notice of deposition has been served party in another state who is outside your court's in the original subpoena power. Perhaps a former employee or officer of the defendant in your Ohio trucking In any case where it becomes apparent that you case has retired to Florida or Arizona.

2 The nurse will need to obtain Discovery from an out-of- whose charting notes are crucial to your medical state witness in conjunction with a state court malpractice case against a Cleveland hospital has relocated to Minneapolis. Documents critical to the product liability case you brought in the that has jurisdiction over that person or entity. Northern District of Ohio are in the hands of a Once you've done that, after reviewing the state's third-party materials analysis service located in statutes and procedural rules regarding Discovery California. in support of Out-of-State litigation, contact the local clerk of court for guidance.

3 If you are In each of these situations, unless the third party informed as to the general nature of the process, wants to cooperate, you will need an enforceable the local clerk is usually very helpful so, in subpoena to obtain the Discovery you need. If order to get you started, this article includes a you're in federal court, this is a relatively simple list of current state statutes and rules relating process; however, despite nearly one hundred to issuance of subpoenas for use in Out-of-State litigation. Before getting to the list, however, here Commission (ULC) to promote a consistent is a summary of the various approaches governing approach, the procedure for issuing Out-of-State the issue.

4 Subpoenas for Discovery still varies, both in terms of procedure and clarity. In those states that have Out-of-State Discovery in Federal adopted some version of the ULC's most recent Court clerk of court in the county where your deponent Under the current federal rule, you can issue a is located with a subpoena from your state court, subpoena from the district court in which your whereupon the clerk of court is required to issue action is pending and serve it anywhere in the a similar subpoena for In states that, like United states ; however, there are geographic limitations on where you can require the legislation on the issue, you will need to obtain Discovery to take place, and you will have to go a commission from your trial judge and have it to the district court with jurisdiction over your presented to the court of the state in which you witness if you need to enforce the subpoena, or if seek Discovery in order to get a subpoena issued.

5 2 the recipient seeks to quash it. Some states allow the issuance of a subpoena by 26 CATA NEWS Spring 2014. Rule 45 of the Federal Rules of Civil 1. The Uniform Foreign 3. The Uniform Interstate Deposition Act Depositions and Discovery December 1, 2013, permits nationwide Act service of a subpoena issued from the district court where your action Drafted in 2007, the Uniform Interstate is Depositions and Discovery Act 8. (UIDDA) has been adopted in some required the subpoena to issue from the form by 29 states , as well as by the district court in which compliance with Virgin Islands and the District the requested Discovery was to occur, and imposed a range of geographic UIDDA was to set forth a procedure limitations on such followed, that has a minimum of judicial At the same time, the new rule places oversight and intervention, that is cost- compliance.

6 An individual subpoena deponents. 12. recipient may only be compelled to attend a deposition or produce documents within 100 miles of where Discovery to present the clerk of court the recipient resides, is employed, or in the jurisdiction where the Discovery regularly transacts business in person, is sought with a subpoena issued under the authority of the trial court, and then compelled to attend within the state the clerk is to issue a subpoena under where the person resides, is employed, the authority of the Discovery court for 9. or does business in Moreover, service on the motions to quash or enforce a subpoena to open a miscellaneous proceeding, the district court in which compliance and requesting a subpoena in this is required, as opposed to the issuing manner is not considered an entrance court, although they can subsequently of appearance in the courts of the be transferred to the issuing court with Discovery state, which eliminates the the consent of the subpoena recipient or need to obtain local counsel simply in under exceptional If the order to obtain a local judicial involvement contemplated provides that the attorney for the 2.

7 Under the UIDDA occurs if there is a subpoena recipient will be permitted to dispute over enforcement, in which case appear before the issuing court; however, any application for a protective order or Rule 45 does not automatically allow to enforce the subpoena must be made Procedures Act (UIIPA), which was to the local the attorney who issued the subpoena drafted by the UPA in 1962, was meant to to appear in the district court where provide a more comprehensive treatment of the issue, but failed to catch on with is not necessarily available to all out- both formally and practically, that any the states , and the UPA withdrew it from of-state litigants in all states that have dispute over compliance with an out recommendation in of state subpoena is likely to require from the UFDA mostly in that it is more namely Alabama, Georgia, and Utah.

8 The involvement of counsel local to the have reciprocity requirements that district where compliance is to occur. the trial court and the Discovery court to preclude litigants from states (such Out-of-State Discovery in specify the Discovery procedure; however, as Ohio) that have not adopted the State Court if it was not for the fact that it remains the law in Massachusetts, it would be of UIDDA Litigants from 11. non-UIDDA states must still obtain CATA NEWS Spring 2014 27. commissions from their trial court issuance by a local attorney, but the rest clerk of court after doing your best to in order to obtain Discovery in those require some form of petition or motion educate yourself as to that particular practice in the Discovery court, preceded state's practices.

9 To help you with this by the procurement of a commission or process, this article is accompanied by 4. Other states letter rogatory from the trial court. At a list of the state statutes and civil rules least two of these states (Connecticut governing Out-of-State Discovery . We any of the uniform rules promulgated by and New Jersey) provide instructions have done our best to make sure this list the UPA, and their procedures vary both on their state judicial website that are is current as of the date of publication;. designed to aid Out-of-State litigants in however, we can make no guarantees, so at least two (Arkansas and Oklahoma) navigating the process.

10 Nevertheless, make sure you check the current status will permit issuance of a subpoena upon in these states , and in any state in which of the law before you go forward with proof that a notice of deposition has been any Discovery plan. served, and one (Minnesota) permits best practice is to check with the local Current State Statutes And Rules Following the UIDDA. State Statute or Rule Procedural Notes Alabama Ala. Code. 12-21-400 et seq. Reciprocity required (Ala. Code 12-21-406). Otherwise, a commission must be obtained. Ala. R. Civ. P. 28(c). Arizona Ariz. R. Civ. P. California Cal. Code of Civ. Pro et Alternative method is to retain local counsel to issue seq.