In an effort to streamline the onerous, time-consuming process of conducting out-of-state discovery for state court cases, the Uniform Law Commission developed the Uniform Interstate Depositions and Discovery Act (UIDDA). Promulgated in 2007, the UIDDA has been adopted by the majority of states and provides a standardized means for litigants to take depositions and obtain discovery from individuals and entities located out of state. The UIDDA harmonizes the out-of-state subpoena process for state court cases with Federal Rule of Civil Procedure 45.
When seeking out-of-state discovery in a state court proceeding, a litigant must first obtain a subpoena from the state court where the case is venued. The litigant must then present that subpoena to the clerk in the county in which the discovery is sought. Thereafter, the clerk shall promptly issue a local subpoena for service upon the person or entity from whom discovery is sought. It is important to note that the subpoena must comply with all state rules and statutes related to discovery.
The UIDDA repeals the law in those states where discovery is sought that still require a commission or letter rogatory from a trial court before a deposition can be taken in those states. Under the UIDDA, a subpoena request does not constitute a court appearance and, therefore, the out-of-state litigant is not required to be licensed in the state. Therefore, one does not need to be admitted pro hac vice or obtain local counsel when requesting a subpoena pursuant to the UIDDA. However, a local state license is required to file, respond, or appear in court related to an application to enforce, quash, modify, or obtain a protective order concerning a subpoena issued pursuant to the UIDDA.
As of January 1, 2016, the following states and territories have adopted some form of the UIDDA:
Alabama, Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, and Wisconsin.
In addition, legislation to adopt the UIDDA has been introduced in Arkansas and Ohio.
It remains critical to check the requirements of both the state and locality where your case is venued and the state and locality where you seek to conduct discovery because some states have adopted slight variations of the Model UIDDA and other states have only recently adopted the UIDDA (or will in the coming months). If the state in which you are attempting to obtain a subpoena has adopted the UIDDA, the process will be more efficient and less expensive than it once was.
Keywords: litigation, corporate counsel, pharmaceutical, preemption, impossibility, Levine, clear evidence
— Adam R. Prinsen, Godfrey & Kahn, S.C., Madison, WI