Chances are, if your law practice involves litigation in state courts, you will eventually have to depose a nonparty in a state other than where your case is pending. Because state-court subpoena power is limited to the forum state’s geographic boundaries, and because state-court rules are not uniform, obtaining this deposition may be a daunting task. Many lawyers’ reflexive action is to seek a court order or a commission or letters rogatory from the jurisdiction where the case is pending. This is not always necessary.
To secure a subpoena for the deposition of an extraterritorial nonparty you must first look to the rules of the jurisdiction where your case is pending, then turn to the procedural rules of the state where the nonparty is based, and then confirm that there are no additional requirements imposed by local rules in the nonparty’s county of residence. While it is usually advisable to consult local counsel before subpoenaing a nonparty in a state where you are not licensed, engagement may not be necessary. This article provides a checklist that may be universally applied when you need to depose a nonparty in a state other than where your case is pending, and identifies each state’s relevant statutes.