Best Practices for Issuing Subpoenas - Rebecca …

1 12 Georgia Bar JournalToday s litigation, in which the facts of a casesee no geographical boundaries, requires amore expansive subpoena power to properlycross those boundary lines to reach certain witnessesand evidence. While this subpoena power has beeneasily extended in federal court,1it remains a lumber-ing process in state courts. This article will set forth the best Practices for issu-ing a subpoena in Georgia for a case pending in anoth-er state (the foreign state ). Although this process hasnot been fleshed out in Georgia cases and remains driv-en by the clerk of court for each county, there are cer-tain steps that will remain relatively constant. Becauseit is not settled law that only Georgia procedure wouldapply to a subpoena issued in Georgia, it is recom-mended that attorneys err on the side of caution andfollow the more restrictive procedure as betweenGeorgia and the foreign state. The degree to which anattorney follows this more conservative approach willvary depending on cost, anticipated cooperation of thedeponent and opposing parties, and strategy in theunderlying has adopted the Uniform ForeignDepositions Act (the Act ),2which allows Georgiacourts to issue Subpoenas for cases pending out ofstate.

2 Although the Act was meant to simplify theprocess of deposing a Georgia resident for an out-of-state case, the courts have developed their own andvaried procedures for Issuing Subpoenas . The courtsare within their rights to do so because the Act is astatute of empowerment, not requirement. 3 Preparing to Issue the SubpoenaBefore the court issues the subpoena, the Georgiaattorney and out-of-state counsel need to lay somegroundwork as follows. Run a conflict check. Run a conflict check on all parties to the case and thenon-party deponent. Because the issuance of a subpoe-na has the potential to result in a motion to quash ormotion to compel, the Georgia attorney must be fullyinformed of who the parties are, particularly if theattorney may be called upon to defend the issuance ofthe subpoena in whether out-of-state counsel is seeking testimony, documents, or both. The Georgia Civil Practice Act, unlike the FederalRules of Civil Procedure, only provides for subpoenasto issue for deposition, and not for documents Practices forIssuing SubpoenasDepositions of Georgia Residents in Cases Pending Out of Stateby RRebecca BB.

3 PPhalenGBJ Featuresubpoena for deposition can, how-ever, command the deponent toproduce and permit inspection out-of-state counselis only seeking documents, thosedocuments may be obtained withsigned authorizations or throughthe parties cooperation. Otherwise,the documents need to be obtainedthrough a subpoena for depositionwith a request for documents. Thedeposition can always be cancelledif the documents are obtainedbefore the deposition. Review the specific information sought in thesubpoena to determinewhether any privileged, confidential, or irrelevantinformation is goal is to serve a subpoenathat will be able to withstandscrutiny if enforcement is soughtin a Georgia court. However, thelevel of scrutiny that courts give tosubpoenas issued for out-of-statecases varies; courts take differentpositions on both the scope oftheir power to review substantiveissues (such as privilege and rele-vancy) and which state s lawapplies to any courtmay apply its own substantivelaw and quash a subpoena that itdetermines is overbroad or seeksprivileged court may also apply the for-eign state s law in limiting the scopeof discovery sought by the subpoe-na.

4 In Barnes v. A Confidential Party,8the deponent s state court allowedthe deponent to invoke a privilege ofthe foreign state in refusing toanswer certain questions at a depo-sition finding that the foreignstate s substantive law of privilege, aswell as its procedural rules shouldbe applied to depositions takenunder commission in anotherstate. 9A deponent s state courtmay even be willing to issue a rulingon the relevancy of the informationsought by the subpoena if the partyseeking discovery can establish therelevancy of the the other hand, some courtshave held that their review of achallenged subpoena issued for anout-of-state case is limited to com-pelling the deponent to attend andimposing sanctions for failure toattend. This position suggests thatthese courts do not think that theyhave the power to rule on issuesthat go to the heart of the playing such a limited role,the deponent s state court maydefer to the ruling of the foreigncourt on substantive this background, becausethere is the possibility that theGeorgia court will examine thesubstance of the subpoena for priv-ilege and relevancy issues, the sub-stance and breadth of informationsought in the subpoena should beexamined by Georgia counsel.

5 TheGeorgia counsel should advise theout-of-state counsel if there is anyinformation sought that could beconsidered privileged, confidentialor irrelevant under Georgia analysis will allow the out-of-state attorney to either modify thesubpoena to comply with Georgiasubstantive law or to modify thecommission to reflect that the for-eign state s law should a statement to that effectin the commission may not bebinding, it can be persuasive to acourt should the subpoena be chal-lenged. 13 Comply with the more restrictive notice requirement governing service of Subpoenas . Although Georgia law does notmandate a particular time periodin which a subpoena may beserved, it does allow a deponent toobject to discovery for good causeshown, including asking thecourt to allow the discovery only on specified terms and condi-tions, including a designation ofthe time or place. 14 When givingnotice of a deposition 9-11-30, the partyrequesting the deposition shallgive reasonable notice in writingto every other party to the action.

6 June 200713 While not expressly applicable toserving Subpoenas , reasonablenotice is the guiding , the person to whoma subpoena is directed may, within10 days after the service serve awritten objection to the this statute does notmandate a time period for serviceof the subpoena, but rather a timefor the objection,16this 10-dayperiod serves as partial time-frame. Finally, if the foreign staterequires a subpoena to be served acertain number of days before thedeposition, that requirementshould be observed since it is notclear which state s procedurewould prevail on a motion toquash or motion to compel. Provide notice of the deposition in accordancewith the Georgia ethicalrequirements. The Georgia State DisciplinaryBoard has advised that a subpoenashould only be issued for deposi-tions which have been actuallyscheduled by agreement betweenparties or where a notice of deposi-tion has been filed and servedupon all parties, and should not beissued when no deposition hasbeen scheduled.

7 17 This require-ment is to prevent the misuse ofsubpoenas by misleading non-party witnesses into releasing con-fidential or privileged informationwithout the non-party s having anopportunity to object to the pro-duction of that com-ply with this requirement, the out-of-state counsel should eitherschedule the deposition by agree-ment or serve the notice of deposi-tion before having the subpoenaissued in Georgia. Determine where thedeponent can be compelledto attend a a deposition in an out-of-state case, the Georgia clerk of anycourt of record where the deposi-tion is to be taken can issue the , there are onlycertain places where a deponentcan be compelled to attend a depo-sition: 1) in the county where heresides or is employed, 2) in thecounty in which he was servedwith the subpoena, and 3) at anyplace not more than 30 miles fromthe county seat of the county wherethe deponent resides or deposition shouldbe arranged in a county where thedeponent can be compelled the deposition location isestablished, the appropriate Georgiaclerk of court should be contactedregarding that court s proceduresfor Issuing an out-of-state subpoe-na.

8 The importance of this commu-nication cannot be some counties clerks arevery familiar with this request, oth-ers may at first refuse the request toissue an out-of-state subpoena. Tothe extent that the clerk s informa-tion differs from this article, followthe clerk s suggestions. If the clerkis unfamiliar with the procedure,the approach in this article can besuggested. If the clerk s require-ments are impractical, the locationof the deposition can be changed toa different county assuming thereis another county where the depon-ent can be compelled to attend the SubpoenaIn order to issue the subpoena,the clerk of court generally requiresthe subpoena and a certified copyof a commission (also called a letterrogatory).22 The commission is arequest from the out-of-state court,signed by the foreign judge,requesting that the Georgia courtissue the subpoena. The clerk ofcourt may require that the commis-sion include certain specifics aboutthe deposition ( , name of depon-ent or time, date, and location ofdeposition).

9 23 The commission should notrequest the Georgia court to issuean ordercompelling the productionof documents or the appearance ofthe deponent. One Georgia courthas held that such a request from aforeign court is not entitled to fullfaith and credit because the foreigncourt did not have personal juris-diction over the Georgia commission shouldsimply request that the Georgiacourt issue the subpoena. As dis-cussed above, out-of-state counselmay also wish to modify the com-mission to reflect that the foreignstate s law should apply. A samplecommission and subpoena areincluded at the end of this out-of-state counsel shoulddetermine the best method forobtaining a commission. The par-ties may submit a joint motion tothe foreign court or, if the opposingparty will not consent, a motion torequest the commission could besubmitted. Serving the SubpoenaGeorgia law permits a variety ofmethods to serve a subpoena; how-ever, the foreign state s law may bemore restrictive.

10 The parties shouldfollow the more restrictive rule toavoid any complaints of improperservice that the deponent may14 Georgia Bar JournalOnce the deposition location is established, the appropriate Georgiaclerk of court should be contacted regarding that court s proceduresfor Issuing an out-of-state subpoena. The importance of this com-munication cannot be For example, if the foreignstate only allows personal serviceof a subpoena, then the subpoenashould be personally served, eventhough Georgia law allows othermethods of service. Under Georgia law, once the sub-poena is issued, it may be servedanywhere in the be served by personal service,registered or certified mail or statu-tory overnight and mileage fees arealso required in certain circum-stances. If the deponent lives out-side the county where the deposi-tion is to be taken, service of thesubpoena must include the statuto-ry witness fee of $25 per day andthe mileage fee of 20 cents per mile(calculated from the deponent sresidence and back).