Obtaining Out-of-State Evidence for State Court …

1 A Look at the Law Reprinted with permission from the Georgia Bar Journal, Volume 17, Number 2, October 2011. Copyright State Bar of Georgia. Statements expressed within this article should not be considered endorsements of products or procedures by the State Bar of Georgia. Obtaining Out-of-State Evidence for State Court Civil Litigation: Where to Start? by Rebecca Phalen Y. ou 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 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.

2 You can reach wit- nesses and documents outside Georgia through an enforceable subpoena. Each State has a procedure in place to allow you to compel testimony or the produc- tion 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 18 Georgia Bar Journal 18 9/27/2011 11:47:25 AM. a subpoena that is to be served in Even if a State has adopted the an alternative procedure so that another But for litigation in UIDDA, you must review that there would still be a mechanism State courts, each State has its own State 's version.

3 A couple of states available to Out-of-State attorneys procedure for issuing and enforcing have added different reciproc- should a State have not adopted a subpoena for cases pending out- ity For example, a law governing the underlying side that State . Sometimes the State 's Utah's UIDDA only applies if the action similar to the procedure varies by Before other State has adopted provi- The House passed the amendment you can compel a witness to provide sions substantially similar to this with the reciprocity provision, so testimony or produce documents in uniform act. 11 Because Georgia the Senate will likely address this another State , you must find and fol- has not (yet) adopted the UIDDA, amendment next year.

4 Low that State 's procedure. Georgia attorneys must look to The trend among the states is the alternative process in UFDA and Subpoenas towards adopting the Uniform Virginia's reciprocity requirement, Issued with a Interstate Depositions and however, allows a predecessor Discovery Act (UIDDA), but not uniform act to Since Commission all states have adopted it yet. Georgia has adopted the Uniform The Uniform Foreign Depositions Some states , like Georgia, may Foreign Depositions Act, then Act (UFDA) remains in place in require the attorney in the out- Georgia attorneys should be able to several states . It is a predeces- of- State action to present a com- use Virginia's UIDDA procedure.

5 Sor act of the UIDDA, adopted mission to the clerk in the State The states that have adopt- by the National Conference of where the witnesses or documents ed the UIDDA, or a substantially Commissions on Uniform State are located before the clerk will similar statute, are: California,14 Laws in 1920. It states : issue the subpoena. Other states Colorado,15 district of Columbia,16. require an application to be filed Delaware,17 Idaho,18 Indiana,19 Whenever any mandate, writ as a civil action, while still other Kansas,20 Kentucky,21 Maryland,22 or commission is issued from states have procedures everywhere Mississippi,23 Montana,24 Nevada,25 any Court of record in any in between. These procedures are New Mexico,26 New York,27 North foreign jurisdiction, or when- outlined below with cites to each Carolina,28 South Carolina,29 ever upon notice or agree- State 's statutes or rules.

6 Tennessee,30 Utah, 31 Virgin Islands32 ment it is required to take and Earlier this year, bills the testimony of a witness in Uniform Interstate to enact the UIDDA were introduced this State , the witness may Depositions in Georgia34 and Pennsylvania,35 be compelled to appear and but those bills did not pass. testify in the same manner and Discovery Act In Georgia, the bill to adopt the and by the same process as The UIDDA permits a party to UIDDA passed the House, but the employed for taking testimo- submit the foreign subpoena (the Senate passed an amendment to ny in matters pending in the subpoena from the underlying liti- the bill to bifurcate it so that Part I courts of this State .)

7 39. gation) to the clerk of Court where of the bill would be in effect until the discovery is The clerk the effective date of the revised The states that still have must then issue a subpoena for Evidence code, and Part II with the UFDA, or a similar stat- service, and that subpoena must updated code citations would be ute, are: Florida, 40 Georgia, 41. incorporate the terms used in the effective upon the effective date Louisiana, 42 Nebraska, 43 New foreign subpoena and list the con- of the revised Evidence Hampshire, 44 Ohio, 45 Oregon, 46. tact information for all counsel of This bifurcation would permit the Rhode Island, 47 South Dakota, 48. record in the underlying UIDDA to remain in effect seam- Texas 49 and The UIDDA eases concern about lessly without any needed house- If your witness is located in one the unauthorized practice of law keeping measures.

8 But when the of these states , then your first step by clarifying that requesting the bill as amended went back to the should be to call the clerk of Court issuance of the subpoena does not House, the House proposed an in the county or parish where the constitute an appearance before the amendment to introduce a reci- witness is located. The clerk may Under the UIDDA, the sub- procity provision so that the require a notice of deposition, a poena is to be served in accordance UIDDA process could only be used commission or even a miscella- with the discovery State 's if the State where the underlying neous action to issue the subpoena. It also provides the procedure to case is pending has adopted a It is unlikely that local counsel challenge or enforce the subpoena: similar Interestingly, is required for these states (with an application is to be filed in the Georgia's proposed version of the the exception of Oregon) at discovery State with the clerk of UIDDA would keep a modified least until the subpoena needs to Court that issued the version of the current statute as be enforced.

9 October 2011 19. 19 9/27/2011 11:47:25 AM. Issued Without Court Given the unclear pro- check the rule of the State from Intervention cedure in those states , you should which you are seeking call the clerk of Court to determine The additional up-front cost for A few states allow either the their procedure. If that call is not hiring local counsel ensures that clerk of Court or another person to enlightening, then local counsel the subpoena is issued and served issue the subpoena without filing should be engaged. properly meeting your ultimate a separate action. In these states , goal of having an enforceable sub- because you are not entering an Should You Hire poena. To provide certainty to your appearance before the Court Local Counsel?

10 Client on costs, local counsel should requesting the subpoena is more offer this assistance for a flat rate. of an administrative task you Even if local counsel is not If you are pursuing Evidence in should not be required to hire local required, if you anticipate any a State that does not require local Only when you need the resistance to the subpoena, then counsel, then review that State 's Court to enforce the subpoena will you may gain a strategic advantage statutes, which will answer most you need local counsel. by hiring local counsel before you of these questions. After you are These states are: Arkansas,52 seek the subpoena. Hiring local familiar with those statutes, then Connecticut,53 Iowa,54 Mass- counsel, and including that name you can make an informed call to achusetts,55 Minnesota56 and North on the subpoena, will alert the the clerk of Court .