Can I Get a Witness: Obtaining Out-of-State Deposition Subpoenas

Most lawyers will at some point have to track down a witness residing in another state for purposes of obtaining discovery for use in a case pending before another state court. For instance, to defend your case pending in the Circuit Court of Escambia County, Alabama, you need critical testimony from an uncooperative, former employee of your client who has moved to Los Angeles, California, to pursue her show-business dreams. This situation calls for the issuance of an out-of-state subpoena. Generally, upon learning of the need to issue such a subpoena, my head is instantly filled with procedural questions (and the refrain from Marvin Gaye’s 1963 classic):  Does California require letters rogatory or commission? Will I have to obtain local counsel to file a miscellaneous action in a California court to prompt a judge to issue my subpoena? Can I include a document request with my deposition subpoena? Proper issuance and service of your subpoena is crucial if you want your witness to appear for the deposition. Indeed, unless the former employee agrees to miss an acting lesson to appear for deposition, you will require a valid subpoena to command her appearance.

Federal Courts Have Uniform Deposition Subpoena Procedures
In federal court, issuing an out-of-state subpoena is a relatively painless and uniform process. Indeed, if you are an attorney authorized to practice in the federal court where your action is pending, you can issue a subpoena in another jurisdiction without the court’s involvement or the assistance of local counsel. As set forth in Fed. R. Civ. P. 45, the subpoena must simply be issued from the U.S. District Court where the deposition is to be taken or the production or inspection is to occur.

Alas, such uniform simplicity for issuing out-of-state subpoenas does not currently exist at the state-court level. The specific requirements for obtaining an out-of-state subpoena generally vary from state to state and, sometimes, from county to county.  The Uniform Law Commission, however, has taken steps to streamline the out-of-state subpoena process among the state courts.

The Uniform Law Commission
The Uniform Law Commission (ULC), also known as the National Conference of Commissioners on Uniform State Laws, was established in 1892 and comprises practicing lawyers, judges, legislators, law professors, and others individuals qualified to practice law. See Walter P. Armstrong, Jr., A Century of Service—A Centennial History of the National Conference of Commissioners on Uniform State Laws (West Publishing Co. 1991). These commissioners represent each state as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Their respective state governments appoint them to “research, draft, and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.” With advice from the American Bar Association, uniform laws are initially prepared in committees comprising ULC commissioners. Once drafted, the proposed laws endure an extensive editing and approval process before being offered to states for adoption.

Several prominent American lawyers have served as commissioners, including President Woodrow Wilson and Chief Justice William Rehnquist. Since its inception, the ULC has issued over 300 uniform laws that have been submitted to the states for adoption. Perhaps the most well known of these is the Uniform Commercial Code or UCC.

In furtherance of its goal to unify specific areas of state law, the ULC has made several efforts to streamline the out-of-state deposition subpoena requirements across all states. Its first attempt was the 1920 Uniform Foreign Deposition Act (UFDA), which provides in relevant part as follows:

Whenever any mandate, writ, or commission is issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as my be employed for the purpose of taking testimony in proceedings pending in this state.

In 1962, the ULC drafted the Uniform Interstate and International Procedures Act (UIIPA). While the UIIPA expounded on and was meant to supersede the UFDA, its acceptance was not widespread. Ultimately, the ULC withdrew the UIIPA from recommendation in 1977. Thirty years passed before the ULC offered a new alternative for unifying out-of-state discovery procedures.

In 2007, the ULC issued the Uniform Interstate Depositions and Discovery Act (UIDDA) with the goal of creating an interstate discovery procedure that “can be easily and efficiently followed, that has a minimum of judicial oversight and intervention, that is cost effective for litigants, and is fair to deponents.” The ULC used Fed. R. Civ. P. 45 as a template for the UIDDA because it is “universally admired by civil litigators for its simplicity and efficiency.”

Under the UIDDA, a litigant presents the clerk of court located in the out-of-state jurisdiction where the discovery is sought with a subpoena issued by the trial court. Upon receipt of the trial-court subpoena, the clerk will issue a discovery-state subpoena for service upon the person or entity that is the subject of the original subpoena. The UIDDA reduces the need for judicial oversight in issuing an out-of-state subpoena and altogether removes the necessity for obtaining a commission or letters rogatory. Further, it eliminates the need for local counsel and the requirement of filing a miscellaneous action in the discovery state to have the subpoena issued.

Since the act’s creation in 2007, numerous states have adopted or are in the process of adopting the UIDDA in some fashion. While the wholesale enactment of the UIDDA by all 50 states and recognized territories would ease the burden on lawyers and clients nationwide, it will likely be several years before that occurs, which also assumes all states will move toward adopting it. In the interim, the non-UIDDA states typically fall into a handful of general categories relating to how they address out-of-state deposition subpoenas.

Letters Rogatory/Commission States
This category of states requires an out-of-state attorney to obtain a document—sometimes referred to either as “letters rogatory” or “commission”—from the trial court directing the court in the discovery state to issue the subpoena. Generally, local counsel is not required in the discovery state to issue the subpoena under the letters rogatory/commission approach. Instead, the trial court will issue the letters rogatory/commission, which can then be forwarded, along with a proposed subpoena, to the appropriate discovery-state clerk, who will work with counsel to have the subpoena issued. Local counsel will only become necessary if compliance with the subpoena becomes an issue.

To give one example, Alabama is a commission state.  Specifically, Ala. R. Civ. P. 28(c) requires any person desiring to take the deposition of an Alabama resident for use in a foreign action to provide a commission from the foreign, trial court to the Alabama court in the circuit where the witness resides. At that point, the Alabama court will issue the necessary deposition subpoena pursuant to Ala. R. Civ. P. 45.  Should any issues relating to compliance with or the scope of the subpoena arise, those may be addressed with the subpoena-issuing, Alabama court in a manner consistent with Ala. R. Civ. P. 30(d), 37(a)(1), 37(b)(1), and/or 45(c).

Miscellaneous Action States
These states require a party to hire local counsel in the discovery state to initiate a miscellaneous action in the discovery state court with jurisdiction over the deponent. This typically includes submitting a motion to the discovery court for an order allowing the subpoena to issue.

Uniform Foreign Depositions Act States
The states that are still clinging to some form of the UFDA require a party seeking a deponent to employ the same measures used in the trial-court state. Generally, this involves submitting to the discovery state court a notice of deposition and subpoena. Similar to the letters rogatory/commission states, local counsel is normally not required to issue subpoenas in UFDA states, but may be necessary in any enforcement proceeding.

Best Practices for Obtaining Out-of-State Deposition Subpoenas
With the wide variety of procedures employed across the country for issuing an out-of-state deposition subpoena in state court, your best friend in the process is usually going to be the local clerk of court in the discovery state. Thus, when you realize an out-of-state subpoena will be necessary, you should locate your witness, determine the state court having jurisdiction over him or her, review the state rules and/or statutes regarding out-of-state deposition subpoenas, check the discovery state court’s web site for relevant local rules or preferred forms, and make a list of any questions you may have about the process. At that juncture, contact the local clerk. Typically, the clerk is very helpful in shepherding you through the process, which includes providing confirmation or clarification of proper procedures, forms, and fees.

In a legal world where life is easy, all states will adopt some form of the UIDDA. Until that world comes to be, however, we will have to consult each state’s rules or statutes on out-of-state depositions and rely on helpful court clerks when seeking out-of-state deposition subpoenas. The chart below identifies the current state statutes and rules authorizing issuance of subpoenas to compel witnesses to attend a deposition for use in another state. Hopefully, it will be of some assistance in starting the process the next time you need an out-of-state deposition subpoena. Please note, however, that, as this goes to press, several states are in the process of amending their procedures through the adoption of the UIDDA, so please check the current status of the rules and statutes identified below.

Current State Statutes and Rules Relating to Issuance of Out-of-State Deposition Subpoenas