Subpoena Service

By: Akanksha A. Panicker

Calling witnesses to deposition is a long process that needs to check quite a few boxes, particularly the fee that has to be paid for these witnesses’ production. Individuals are required to be paid for their time and mileage to the office or courthouse.

However, not all witness fees are created equal, and not all states actually require witness fees. The rules surrounding them are also exceedingly different based on the state. Consequently, it can get difficult for attorneys to determine when a witness fee must be sent and how much it should be.

[1.0] FEDERAL CASES

When a subpoena’s service compelling the witness’s attendance has been conducted, a fee for one day’s attendance and the accompanying mileage fee must be put forth unless the Federal Government itself is subpoenaing the witness^[1]. A subpoena generally can demand a witness’s attendance, or the production of documentary or other tangible evidence in the possession or under the control of the person served, or both. Furthermore, the individual whose insistence at which the subpoena was served must furnish the fees’ payment. However, this might be taken over by the FRA if [A.]the presence of the subpoenaed witness or evidence will materially advance the proceedings and [B.] the party at whose instance the subpoena was issued would suffer a serious financial hardship if required to pay the witness fees and mileage

All witnesses in Federal Cases or before a US Magistrate Judge must be paid a per diem fee^[2]. Witness fees are usually around USD 40 per day, with mileage for transportation being covered at 57.5 per mile.  However, if the witness takes a common carrier instead, the actual expense reimbursed will be the most economical means of travel. Thus, the round trip begins from the witness residence to the destination and must be supplanted with a subpoena. Furthermore, if an overnight stay is necessitated, the witness is paid a subsistence allowance if they cannot return to the location. However, there is no fixed fee attached, and the amount payable can differ based on the year and location.

Travel compensation is most often calculated after the costs have been incurred.  So, what if the individual uses their own means of transport? If the witness uses their own private automobile, they can still avail themselves of the same mileage. The statute authorized a rate per mile as capped by the IRS. However, the administrator ^[3] of General Services may establish the rate itself upon reviewing their ‘uniformed table of distances.’ If the witness’s residence is unknown, the calculation may be done from an alternate or business address. Further, the witness is entitled to [A.] parking fees, [B.] ferry fees, [C.] bridge, road and tunnel costs, and [C.] airplane landing costs.

It must be considered herein that the witness compensation kicks in when physical attendance is mandated. In situations where subpoenaing records does not require attendance, no witness fee must be paid. However, the witness can recover reasonable copying costs for the documents^[4].

What happens when the person served is not a natural person? Companies usually see the service of the subpoena handed over to a designated agent or representative. This could be an officer, director, or even an agent in charge of the person’s office. Once handed over, the delivery of the subpoena and tender of the fees is complete. If personal service can’t be enacted, the subpoena can be mailed by certified mail to the agent or representative, with the fees being made available before the return date.

[2.0] SUBPOENA FEES IN NEW YORK

New York’s CPLR dictates that attendance compelled by a subpoena requires compensation of USD 15 per day’s attendance. This is not dependant on whether actual testimony has been taken. Furthermore, travel expenses are covered at twenty-three cents mileage to the destination of attendance and cover the return trip. However, this does not cover the mileage fee if it is only within a city.

However, if a witness is not a party or agent or employee of a party, they receive an additional three dollars per day as compensation. This holds for whether they are subpoenaed to give testimony or produce books, papers, and other things at an examination before trial^[5]. If preparation of a transcript of records is also necessitated, the person subpoenas are further eligible for ten cents per folio upon demand in addition to the fee they have already received. 

[3.0] REQUIREMENTS OF THE PROCESS SERVER

Firstly, it must be established that the fees and mileage need not be tendered at the time of service if a subpoena is issued at the instance of an officer or agency of the United States. However, as a general rule, the delivery of a copy of the subpoena and tendering of the fees is mostly done by handing them physically to the individual. If this cannot be achieved, alternate routes like handing the documents at the person’s office with an individual authorized to accept the same or providing a person of suitable age and discretion at the subpoenaed individual’s house can be adopted. Mailing the individual by certified mail at their last known address or any other method for actual notice can be adopted as long as the fees are made available before the return date. However, the original subpoena bearing a certificate of service needs to be filed with the official responsible for the proceeding in connection with which the subpoena was issued. 

  [4.0] COST STATEWISE

1. Alabama: $1.50 per day and 5 cents per mile and all necessary ferriage, tolls of turnpikes, and toll bridges available only on one side of the same case. AL Code § 12-19-131 (2014).
2. Alaska: $12.50 for under 3 hours of the witness’s time, including travel time; $25 per day for more than 3 hours; and mileage paid at the same rates for state employees if traveling more than 30 miles. AS 24.25.050.
3. Arizona: $12 per day, including travel time including the time he needed to leave his residence and go to the place of trial and his discharge as a witness. Furthermore, this includes 20 cents per mile one way as long as it is for actual distance traveled. A.R.S. § 12-303.
4. Arkansas: $30 per day and 25 cents per mile from witness’ residence to the place of the trial or hearing. Ark. R. Civ. P. 45(e).
5. California: $35 plus 20 cents per mile round trip.  Cal. Gov. Code § 68093. If the same comprises only records, the payable fee is $15. Cal. Evid. Code 1563(b)(6).
6. Colorado: $40 per day plus 58 cents per mile round trip. § 13-33-102 C.R.S.
7. Connecticut: 50 cents per day subject to exceptions as under section 54-152. This includes mileage paid at the same rates for state employees furnished under section 5-141c. Connecticut General Statutes Title 52. Civil Actions § 52-260.
8. Delaware: $2 per day plus round-trip mileage of 3 cents per mile. 70 Del. Laws § 8903. Mileage fees [A.]$0.575 per mile for automobiles, [B.]$0.545 per mile for motorcycle, and [C.] $1.27 per mile for airplanes.
9. Florida: $5 plus 6 cents per mile. If the witness lives in the county where they are ordered to appear, the flat fee is $7.50.  Fla. Stat. § 92.142.
10. Georgia: $25 per day plus 45 cents per mile round trip. Execution shall be issued by the clerk upon the affidavit of the witness to enforce payment. OCGA § 24-13-25.
11. Hawaii: Each witness paid a sum of $4 for each day’s attendance in court and travel expenses at the rate of 20 cents a mile each way.HRS § 607-12.
12. Idaho: $20 per day plus 30 cents per mile one way. IRFLP 901.
13. Illinois: Every witness attending in any county upon trials in the courts, except for actions arising under Article II of the Juvenile Court Act of 1987, shall be entitled to receive the sum of $20 for each day’s attendance and $0.20 per mile each way for necessary travel.. 705 ILCS 35/4.3.
14. Indiana: Criminal cases – $5 per day or $15 per day if subpoenaed under IC 35-37-5-4 and mileage at the same rate as state employees; Other actions – $5 per day plus mileage at the same rate as state employees; School employees subpoenaed to testify – $100 per day plus mileage as paid to state employees. I.C. § 33-37-10-2 – 33-37-10-3.5.
15. Iowa: Witnesses shall receive ten dollars for each full day’s attendance. Five dollars for each attendance less than a full day, and mileage expenses under section 602.1509 for each mile actually traveled. Iowa Code § 622.69.
16. Kansas: the sum of $10 per day, together with the mileage at the rate prescribed by law for each mile after the first. K.S.A. § 28-125.
17. Kentucky: Fees not prescribed
18. Louisiana: $25 per day, $5 per day for hotel and meals. LA Rev Stat § 13:3661.
19. Maine: $10 per day and 22 cents per mile round trip. 16 M.R.S. § 251.
20. Maryland: No witness fee or mileage is required for fact witnesses.
21. Massachusetts: $6 per day plus 10 cents per mile round trip. G. L. c. 262 § 29.
22. Michigan: $12.00 per day and $6.00 per half-day plus mileage paid at the same rate as state employees. MCR 2.506(G)(1).
23. Minnesota: $20 per day plus 28 cents per mile round trip counted from the state’s boundary line where the witness crossed it if outside the state, 28 cents per mile. Minn. Stat. § 357.22.
24. Mississippi: Witness fees and mileage rates are set by the Board of Supervisors in each county, so rates vary. Witnesses in the county, circuit, and chancery courts typically receive $1.50 per day and $. 05 per mile for traveling from their homes to the courthouse and back again.
25. Missouri: The rate for in-state witnesses is twenty-five dollars ($25.00) per day plus a mileage allowance at the state rate as provided in Section 33.095, RSMo. The mileage rate is thirty-seven cents ($0.37). § 491.280 RSMo.
26. Montana: $10 per day plus 17 cents per mile round trip. § 24.11.336, MCA.
27. Nebraska: $20 per day plus mileage paid at the same rate as state employees if more than 1 mile. Neb. Rev. Stat. Ann. § 33-139.
28. Nevada: $25 plus mileage paid at the same rate as state employees. Travel fees are $0.17 per mile. NRS 50.255.
29. New Hampshire: $30 for a police officer, $24 for everyone else. RSA 516.16.
30. New Jersey: $2 per day plus $2 for every 30 miles of travel. N.J.S.A. § 22A:1-4.
31. New Mexico: $95 per day. Expert witnesses usually charge an hourly rate for depositions, ranging from $200 to $500 to $1000 and up depending on the expert type. NMSA 1978 § 10-8-4.
32. New York: $15 per day plus 23 cents per mile round trip. NY CPLR § 8001.
33. North Carolina: Witnesses are not entitled to receive their fees in advance but are not compelled to attend more than one day if payment has not been made. $5 per day plus mileage paid at the same rate as state employees. N.C.G.S. § 7A-314.
34. North Dakota: $25 per day plus mileage paid at the same rate as state employees. N.D.C.C. § 31-01-16.
35. Ohio: $12 for full days and $6 for half days, plus 10 cents per mile round trip. R.C. 2335.06.
36. Oklahoma: $10 per day plus mileage paid at the same rate as state employees. 28A O.S. § 28-81.
37. Oregon: $30 per day plus 25 cents per mile. ORS 44.415.
38. Pennsylvania: $5 per day plus 7 cents per mile round trip. Witness fees and round-trip mileage are not required for criminal subpoenas or Subpoenas  Duces  Tecum, which demands the production of records only with no testimony, court appearance, or travel required 42 Pa.C.S. § d5903.
39. Rhode Island: $10 per day plus 10 cents per mile round trip. Furthermore, $2.00 payable for every day’s commitment in jail upon default to enter into recognizance with surety. G.L. 2013 § 9-29-7.
40. South Carolina: $25 per day plus mileage paid at the same rate as state employees. Such mileage is limited to each mile actually and necessarily traveled. S.C. R. Civ. P. 45(b)(1).
41. South Dakota: $20 per day plus mileage paid at the same rate as state employees. Such mileage is limited to each mile actually and necessarily traveled. SDCL § 19-5-1.
42. Tennessee: Court appearances – $1 per day plus 4 cents per mile for distances greater than 10 miles; Subpoenas in civil cases – $30 per day plus mileage paid at the same rate as state employees if greater than 10 miles. T.C.A. § 24-4-101.
43. Texas: $10 per day. This fee includes the entitlement for travel, and the witness is not entitled to any reimbursement for mileage traveled. TEX. CIV. PRAC. & REM. CODE § 22.001.
44. Utah: $18.50 for the first day, $49 per day for each subsequent day. $1 in addition to every 4 miles for mileage that crosses 50 miles. Utah Code Ann. § 78B-1-119.
45. Vermont: Witnesses are currently paid $40 a day for attendance and $.575 per mile for travel. Witnesses are responsible for the Department of Justice or counsel subpoenaing a witness and are not paid by the court.. 32 V.S.A. § 1551.
46. Virginia: Mileage paid at the same rate as state employees. Code § 2.2-2823.
47. Washington: $10-$25 per day, depending on the county. No witness shall be entitled to fees or mileage from the state when summoned at the instance of the public service companies affected. RCW 2.40.010.
48. West Virginia: $10 per day, $5 for half a day, and 10 cents per mile round trip. W. Va. Code Ann. § 33-2-5.
49. Wisconsin: $16 per day plus 20 cents per mile round trip. Interpreters, $10 per one-half day. Wis. Stat. § 814.67.
50. Wyoming: $30 per day, $15 for half days plus 23 cents per mile. Expert witness fees shall be allowed at the rate of $25.00 per day. Still, if the amount allowed constitutes a higher hourly rate than$25.00 per day; this higher amount is allowable only when the expert witness actually testified.  U. R. D. C. 501(a)(3)(B)(i).

For information on serving subpoenas, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!

Sources

^[1] “fees or mileage need not be tendered.” (FRCP 45(b)(1)).

^[2] U.S. Code § 1821

^[3] 5 USC 574(a)(1)

^[4] Windsor v. Martindale, 175 F.R.D. 665, 670

^[5] NY CPLR § 8001.

By: Akanksha A. Panicker

Preparing and serving outstate subpoenas can seem like a mystery. The Uniform Interstate Depositions and Discovery Act (UIDDA), was enacted purely to unravel this web, however, providing a simplified procedure for parties in an action in one state to obtain records or depose parties located in another. 

In 2007, the Uniform Law Commission promulgated the Uniform Interstate Depositions and Discovery Act (UIDDA) to streamline the arduous, time-consuming process of conducting out-of-state discovery for state court cases. The UIDDA provides a standardized means for litigants to take depositions and obtain discovery from individuals and entities located out of state. To do so, a litigant must primarily obtain a subpoena from the originating state court, which must then be presented to the clerk in the county where discovery is sought. Upon doing so, a local subpoena for service is issued by the clerk. The terms of the issued subpoena must incorporate the same terms as the original subpoena and contain the contact information for all counsel of record and any party not represented by counsel.

The Act virtually eliminates the need for a local counsel in the state of discovery. It removes the necessity for letters rogatory or the filing of a miscellaneous action during the discovery phase of litigation. The need to retain local counsel is heavily reduced, although it might still be necessary to retain them if the discovery state from which records are being sought has not adopted the UIDDA. 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.

It must be understood that the discovery state’s pertinent rules on how to issue the subpoena as well as specific processes, forms, deadlines, and fees should be taken into account. This is because the UIDDA states may sometimes even require the home state’s court clerk to issue a commission, court order, or letters rogatory before issuance of the subpoena. If the discovery state court requires a court order, an order for a commission may be obtained by ex parte application.

New York practitioners can obtain out-of-state discovery minus any court orders [rather than the two that would be necessitated in both states] as long as the foreign state has also enacted the UIDDA. If it has, then the New York practitioner can skip the steps of obtaining a commission or letters rogatory, engaging local counsel, and commencing a second proceeding before a foreign court. 

[1.0] WHAT DOES THIS MEAN

Firstly, an out-of-state subpoena means a subpoena issued under the authority of a court of record of a state other than the state of origin. The federal court sees the governance of the Federal Rule of Civil Procedure uniformly over the process for issuing and serving a subpoena on an out-of-state witness nationwide. To date, the Civil Practice Law and Rules has no direct equivalent to Federal Rule of Civil Procedure 45, the mechanism by which officers of the court use nationwide subpoena power to obtain documents and/or depose witnesses in federal cases

To apply for an outstate subpoena, there are essentially three means of tackling procedure, namely [A.] the Uniform Interstate Discovery and Depositions Act [B.] The Uniform Foreign Depositions Act or [C.] an entirely nonuniform state procedure. 

The UIDDA differs strongly from the UFDA, where the attorney needs to seek a deposition (regardless of whether they have the documents) to obtain an order that authorizes the deposition from the court. This deposition is sought from the court where the action is pending and requires the attorney to take said order to the receiving attorney or clerk in the foreign state. This receiving attorney or clerk is then required to issue the subpoena in the proper form here. The UIDDA instead merely allows the in-state subpoena to be directed to the outstate witness as per the appropriate foreign court clerk, allowing for the issue of a replica subpoena in proper form for that state. The UFDA, however, is currently not prevalent in its usage, and New York has never seen the UFDA in use. 

It’s difficult to categorize the non-uniform procedure, categorized by its lack of uniformity. A few states may simply present the clerk with a notice of deposition; a few states may require one to open the floor for a miscellaneous action and obtain a court order through the procedure. Regardless, the service must comply with the receiving state’s rules of service of process, although process servers are nearly always sufficient. 

[2.0]  HOW TO OBTAIN A SUBPOENA IN NEW YORK FROM A DIFFERENT STATE

As long as the discovery is from a UIDDA state, it’s relatively simple to conduct discovery in New York. Previously, the party needed to obtain a mandate, writ, or commission from their court before the proceeding was initiated in a New York court. Still, this process has been modified under the New York adoption of the UIDDA. The party needs to submit the subpoena to the county clerk in the county where discovery is sought, upon which a subpoena is issued. An alternate option is the authorization of the subpoena issuance by a New York attorney, but this hinges on the receipt of the outstate subpoena, a justification for the retaining of New York practitioners by foreign counsel

Keeping in mind that any motion to quash and modify the subpoena is dependent on the rules of the state where the subpoena will be domesticated is paramount. This means that any application for a reissued subpoena needs to be mailed or personally filed by legal service, with the clerk in the court of domestication and, additionally, will require examination there. This means that requiring this subpoena to be reissued within a deadline is a tough demand since delays in receiving and resending the subpoena is to be expected by mail, use a legal service avoids some of these delays. The reissuing of the subpoena is handled by the clerk or prothonotary, depending on the state. Once the subpoena is reissued, it will receive a new index number or be signed by the clerk. Through all this, an out-of-state party cannot use a subpoena to poke around for relevant evidence but only to compel the production of specific documents that are relevant and material to the factual issues in a pending proceeding. 

Even if the local subpoena is issued, the terms must follow that of the out-of-state subpoena. This means that the information within will remain the same, especially if coupled with the information of the out of state attorneys. This amendment to the C.P.L.R. brings New York in line with other states which have already adopted the Uniform Interstate Depositions and Discovery Act, 

The responsibility of the County Clerk shifts accordingly. They’re required to crosscheck the outstate subpoena with a typical subpoena served within the state. They will only stamp the in-state subpoena based on the equivalent information with the aforementioned outstate subpoena.  

[3.0] POINTS TO REMEMBER

It must be kept in mind that the UIDDA does not affect the procedure in trial states. For example, if the trial state requires a letter rogatory before outstate discovery can occur, the letter rogatory will take precedence, regardless of the enactment status of the UIDDA. This is because the UIDDA oversees procedure in the discovery state where deposition or discovery of materials occurs. This also means that the UIDDA governs subpoenas that are specifically issued by a court of record, including subpoenas that are issued by attorneys who are conferred the authority by the court in a trial state and barring subpoenas that are necessitated in arbitrations or other proceedings. 

Additionally, procedures surrounding discovery notwithstanding the UIDDA must be understood for each state, especially regarding disputes that might occur. The rules of the discovery state govern any disputes that might occur. 

 [4.0] PARTICIPATING AND NONPARTICIPATING STATES

The Uniform Interstate Deposition and Discovery Act has been adopted by over 30 states to make the process as straightforward as possible. These states include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin.

In these states, the party must submit the foreign subpoena to the relevant clerk of the court in the deposition county. The job of the clerk is then to reissue the subpoena based on the relevant process regulations of that state. Despite the smoothening of the procedure to a large degree, a few specific rules of civil procedure for the service state will have to be followed based on the receiving state’s general policies. 

States that have not yet adopted and do not recognize the Uniform Interstate Deposition and Discovery Act include New Hampshire, Massachusetts, Wyoming, Nebraska, Texas, and Puerto Rico. In these states, the domesticating procedure is entirely different. However, it usually follows the process of an issuance request to the local court for the subpoena requirements of the asking court. This would require filling out an application, submitting a petition with attached documents, but entirely depends on the out of state procedure of the requesting court itself. 

So, how do we understand the procedure for a non-UIDDA state?

This is a difficult path to maneuver. Taking the example of Texas as a state that hasn’t adopted the UIDDA, out of state parties who wish to seek discovery must comply with an interconnected and complex set of rules in the Texas Rules of Civil Procedure. Texas Rule of Civil Procedure 201.2 allows a party to an out-of-state proceeding to compel discovery from a Texas resident via an oral deposition or a deposition on written questions, both of which require document requests. The party seeking discovery will need to obtain a mandate, writ, or commission from the out of state court to specifically seek discovery.

Under Texas law, the subpoena is the instrument that compels a non-party to comply with discovery requests.  A Texas court will not enforce an out-of-state subpoena against a Texas citizen. Additionally, each subpoena must be issued under the state of Texas, with the requisite identification of the person to whom the subpoena is directed or other stipulations as per the statute. It can only be issued by an attorney practicing in Texas, the court clerk, or an authorized officer for deposition. 

Another feature that is not typically observed in UIDDA states is Texas’ requirement for notice, which is required for the discovery. The type of notice demanded depends on the type of discovery that is sought. An oral deposition would require notice served at a reasonable time before the deposition. In contrast, a notice of deposition through written questions must be served at least 20 days before the deposition is obtained.

If a non-party fails to comply with a valid and enforceable subpoena without adequate excuse, a court can hold the non-party in contempt and punish the non-party by fine or imprisonment.  A Texas court can also compel the non-party to respond to the discovery subpoena.

Finally, dealing with matters in a federal court does not require adherence to state regulations on subpoenas.  Under Rule 45 of the Federal Rules of Civil Procedure, federal subpoenas can be issued in the district court of the case and then served anywhere in the United States. However, some restrictions on this regarding the geographic location where discovery can occur or the potential motion to quash the subpoena by whoever receives it.  

The UIDDA was created due to the many variances in state rules and cumbersome procedures required to serve the subpoena in another jurisdiction. It gets difficult to keep track of the web of laws to deal with in every state, and the UIDDA smooths the process over wherever possible. While it’s not particularly universal, it remains a useful tool in the requesting of discoverable documents and scheduled depositions. 

For information on filing and/or serving an out-of-state, subpoena click here or call (800) 774-6922 representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful please consider giving a donation.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and visit us again!

Sources

1.NY CPLR § 3119 (1) (2012)

2.FRCP 45: Rule 45. Subpoena

3.This can be seen in even in states like Nevada that adopted the Uniform Interstates Depositions and Discovery Act and repealed the Uniform Foreign Depositions Act, codified as NRS 53.050, 53.060. And 53.070.

4.CPLR 3102(e

5.CPLR 3119

6.CPLR 3119(b)(1)

7.Rule 201 – Depositions in Foreign Jurisdictions for Use in Texas Proceedings; Depositions in Texas for Use in Foreign Proceedings, Tex. R. Civ. P. 201
If a court of record of any other state or foreign jurisdiction issues a mandate, writ, or commission that requires a witness’s oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State

8.Rule 176 – Subpoenas, Tex. R. Civ. P. 176
Every subpoena must be issued in the name of “The State of Texas” and must:(a) state the style of the suit and its cause number;
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party’s attorney of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.

9.Rule 176 – Subpoenas, Tex. R. Civ. P. 176 (“176.4 Who May Issue.A subpoena may be issued by:(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.”)

10.TRCP 199.2(a)

11.TRCP 200.1(a)

12.Rule 176 – Subpoenas, Tex. R. Civ. P. 176

(“176.8 Enforcement of Subpoena.(a)Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.(b)Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party’s attorney of record that all fees due to the witness by law were paid or tendered.”)

By: Akanksha A. Panicker

Depositions, testimony, discovery, and production of records and documents are always a core component of due process and the key to a fair and speedy trial. Mostly, all parties, witnesses, and potential evidence can be sourced in a local manner, is available within the same state. However, when a witness needs to be obtained from another country, a foreign subpoena is issued to compel the testimony or to produce the documents.

The Hague Service Convention makes it simpler to serve documents across countries, but subpoenas do not fall within this bracket. Service of subpoenas cannot technically be served in another country, and goes instead through the Hague Evidence Convention, wherein the process is decidedly more precise, and a little more complex.

Why the difference, then? This can be explained by the fact that subpoenas are mandatory compliance within their own jurisdiction, but once they move past that, they turn into a request. The scope of the subpoena then changes from a demand to a request once they’re outside their jurisdiction. Consequently, how subpoenas act under the Hague Evidence Convention actually corresponds to the process that surrounds the service of letters rogatory. In fact, if a country is not a part of the Hague Evidence Convention, then the subpoena is sent through Letter Rogatory like a summons or a complaint.

[1.0] PROCESS

While the Hague Evidence Convention determines whether the subpoena served abroad is transmitted via the Convention or letters rogatory, the procedure is roughly the same. The documents that need to be served are transmitted by a specific method to the receiving country. The receiving country is then obligated to fulfill service only by a local court with the jurisdiction to complete it while also adhering to internal laws. Inside the US, obtaining evidence under the Evidence Convention can be compared to comity.

What differentiates a subpoena abroad from a domestic subpoena is language. This is perhaps also the reason why a subpoena must be translated to the receiving country’s language before transmission. The tone of a subpoena abroad needs to be conciliatory and cannot use demanding lingo that is customary in a domestic document. It is important to outline exactly how the evidence will be used in a way to convince the receiving country as to the importance of the request.

The Convention establishes a procedure for a designated ‘central authority’ to receive and review incoming letters of request to obtain evidence and to determine compliance with the requirements of the Convention. If compliant, the Central Authority then transmits the letter of request ‘to the authority competent to execute’ it, usually a court. The judicial authority that executes a letter of request applies its own law as to the methods and procedures for executing the letter of request. Both the Hague Evidence Convention and the Letter Rogatory require the US forum judge be the individual to execute the request for judicial assistance, which means that the first step in acquiring said subpoena is putting forward an application or motion to the court, regardless of the method that is actually being used to obtain the evidence abroad.

The next step after this is the forum court hearing, conducted immediately after it receives a motion to execute the Request for International Judicial Assistance. The opposing counsel can thus have a chance every step of the way to quash parts of the request and is encouraged to do so as the hearing is tantamount to gauging the validity of the subpoena by itself. If it does not hold water before transmission abroad, there seems little value in sending the subpoena request only to be rejected at a later date following a much longer process. Since this argument to quash the request is prevalent, some grounds for the same may be [A.] that the request is irrelevant or [B.] that it exceeds the discovery limits permitted, [C.] that it imposes a greater burden on the witness, or falls within the scope of privileged information or [D.] that it is unreasonably long and cannot adhere to the time limits established by the court for discovery.

Once the forum hearing has been cleared, attorneys are required to transmit the Request to the ‘appropriate judicial authority’ in the receiving country. The Hague Evidence Convention allows for a designated Central Authority in signatory countries, so the cleared subpoena request will be directed therein. If the country is not a signatory, the letter rogatory is transmitted through diplomatic channels.

Once the letter is received, the foreign court must evaluate the relevance of the request. If judged to be relevant while complying with internal laws and following the requirements of justice, the request is granted by the court and a date for execution may be assigned. If adjudged to be entirely unreasonable, the court can dismiss the execution.

There is a third course of action, however. If the court bears reservation to the request for evidence, a second formal hearing might be held, this time in the receiving court. The purpose of this hearing is to see whether the request may still be granted but to go ahead with this, the help of a local counsel may have to be chartered. If the hearing goes well and the request is deemed acceptable, the date of execution may be ideated.

What is the date of execution?

The date of production of evidence is the date of execution. Documentary evidence means the date of execution is when the documents are to be shipped to the requesting authority while the date of execution for a deposition is the date when the witness is examined by the requesting authority.

It is hard to pinpoint a specific date of execution for a foreign subpoena. Letters rogatory take a significant period of time and go through a long set of channels. Consequently, for letters rogatory, the foreign judicial authority usually sets the date. Signatories to the Hague Evidence Convention usually set a date within a few months of the request arrival in the receiving country. It must be noted here, however, that a few countries do allow evidence to be taken from voluntary witnesses, though the restrictions surrounding the same vary drastically across countries.

[2.0] HAGUE EVIDENCE CONVENTION

What the Hague Evidence Convention seeks to achieve is to [A.] ’improve the existing system of Letters of the request [B.] enlarge the devices for the taking of evidence by increasing the powers of consuls and by introducing, on a limited basis, the concept of the commissioner; and at the same time [C.] preserve all existing more favorable and less restrictive practices resulting from internal law, internal rules of procedure and bilateral or multilateral conventions’

Understanding the Hague evidence Convention is key. Articles 1-14 regulate the form of the Letter, the scope of its content, the methods of transmission, the language to be used, the method and technique of execution, the compulsion to be exercised against a witness, the privileges and immunities of the witness, the permissible grounds for a refusal to execute the letter, and the question of costs and expenses.

Following this, article 15-22 identify the consuls/commissioners’ rules in taking evidence, understanding the role of the State in compelling the producing of the evidence as well. It also provides alternatives to the consul if they are unable to respond in time or deny the provision of evidence. The later articles, 23-42, merely provide general clauses for identifying the relationship between past Conventions and the authorities designated under Articles.

The Convention specifically provides under its ambit that the person requested to give evidence does not need to provide the same if their hands are tied by the receiving state. For that matter, the request for evidence cannot be executed if the person has a duty to refuse the evidence from the originating state as well. This holds true only if the execution of the Letter does not fall within the functions of the judiciary in the state of origin or infringes on the sovereignty or security of the addressed state.

[3.0] SERVING A SUBPOENA TO AN AMERICAN ABROAD

A subpoena may be served on a U.S. citizen, national, or permanent resident pursuant to 28 U.S.C. §1783 and Fed. R. Civ. P. 45. US citizens and residents are obligated to respond to subpoenas issued by US judicial authorities. Such service is undertaken by U.S. consular officers. However, this is inappropriate for any individual who is not an American citizen or a resident and is sufficient grounds to refuse or quash the subpoena if the condition is not met.

Before obtaining the subpoena, it is necessary to determine the absolute necessity of the testimony in question for the case as well as whether it’s possible to admit the testimony through any other means. It must be proven that the evidence is impractical if not delivered by the witness themselves and that the evidence in itself falls within just standards. Consequently, the subpoena’s relevance and practicability need to be evaluated before being set forth.

A subpoena might be an integral part of any case and a vouchsafe for due process, but a foreign subpoena is a mire of complications specific to each country. Countries impose different formalities, some even allowing voluntary witness evidence. However, obtaining a subpoena from countries with a highly formalistic view of the evidence as a judicial function can cause issues in the case, requiring concise and delicate handling.

For information on serving legal papers visit our webpage here or Call (800) 774-6922 representatives are available Monday-Friday 8 am- 8 pm EST.

Sources

1.Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, or the Hague Evidence Convention, 18^th March 1970

2.Article 2: A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organize the Central Authority in accordance with its own law.

Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.

3.Article 9:

The judicial authority, which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.

However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.

A Letter of Request shall be executed expeditiously.

4.F.R.C.P. 26(b)

5.EXPLANATORY REPORT ON THE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS by Ph.W. Amram

6.Article 11: In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence 

a)  under the law of the State of execution; or
b)  under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.

7.28 U.S. Code § 1783.Subpoena of person in foreign country

8.Fed R. Civ. P5.(b) Service.
(3) Service in a Foreign Country. 28 U.S.C. §1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country

COMPOSITE EXAMPLE OF NEW YORK SUBPOENA

PURSUANT TO THE UNIFORM INTERSTATE DEPOSITIONS

DISCOVERY ACT 

Stat of New York Civil Practice Law and Rules § 3119

PLEASE NOTE:

COUNTY CLERKS IN NEW YORK DO NOT PROVIDE SUBPOENA FORMS.

THIS EXAMPLE IS NOT AN OFFICIAL FORM, AND IS PRESENTED FOR 

ILLUSTRATIVE PURPOSES ONLY.

****************************************

SUPREME COURT OF STATE OF NEW YORK 

COUNTY OF _______________________________                                                                 COUNTY CLERK LOG NO.

_______________________________________________________________x                              SUBPOENA 

                                                                                                                                                                                                                                                                                          

                                                                            Plaintiff/Petitioner,                              

              v.                                                                                                                                                                                   

                                                                                                                                             Originating State:

                                                                          Defendant/Respondent.                        Originating County:

_______________________________________________________________x                              Originating Court:

                                                                                                                                             Originating Case No.

SUBPOENA/SUBPOENA DUCES TECUM

Pursuant to the Uniform Interstate Depositions and Discovery Act

(Personal Attendance Required/Not Required)

TO: [NAME] [ADDRESS]

 

WE COMMAND YOU to appear at the time, date and place set forth below to testify at a deposition to be taken in this civil action and

each of you appear and attend before __________________________________________________

at _________________________________________________, on the _________ day of ______________, 20___, at________ o’clock, in the ___________________ noon, and at any recessed or adjourned date to give testimony in this action on the part of______________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________________________________________________; 

and/or that you bring with you, and produce at the time and place aforesaid, the following documents, electronically stored information, or objects, and permit their inspection, copying, testing or sampling of the material:

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________;

and/or that you permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date and location set forth below, so that we may inspect, measure, survey,, photograph, test, or sample the property or any designated object or operation on it

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

FAILURE TO COMPLY with this SUBPOENA is punishable as a contempt of Court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed one hundred fifty dollars and all damages sustained by reason of your failure to comply.

 

Additional Information:

[if any is contained in the Out-of-State subpoena]

 

Contact Information of Counsel for 

all parties (or contact information for parties pro se)

in the action:

 

Name

Address

Telephone Number Parties) Represented: 

(Repeat as required.)

Dated:_______________   ,______________(state)

            ________________________________

Court Clerk:__________________________________

                                                                                                                                                                                                                                                           

Newly enacted provision of the CPLR under which an out-of-state subpoena can be submitted to either the court clerk where the discovery is to take place or an attorney licensed to practice law in this state, and either of them can issue a New York subpoena.

Effective January 1, 2011, under New York State C.P.LR. § 3119, the County Clerk will be required to issue a local subpoena seeking discoverable materials and/or individuals to be deposed upon the receipt of a duly issued in a purely ministerial manner out-of-state subpoena.  The terms of the local subpoena will mimic the out-of-state subpoena and include all of the out-of-state attorneys’ contact info or the pro se litigant’s info.  This amendment to the C.P.L.R. brings New York in line with other states which have already adopted the Uniform Interstate Depositions and Discovery Act, Which was enacted to create “an efficient and inexpensive procedure to litigants to depose out-of-state individuals and for the production of discoverable materials that may be located outside of the trial state. By the above, upon receipt of an out-of-state subpoena, the County Clerk will compare same with an in-state subpoena (to be drafted and presented by the one submitting the out-of-state subpoena, along with a copy of the in-state subpoena to be filed in the County Clerk’s Office).  If the information requested in the out-of-state subpoena is identical to the in-state subpoena, the Court Clerk will then time stamp the in-state subpoena, as filed and return same for a fee of fifteen dollars ($15.00).

For information on serving subpoenas, contact a subpoena service call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

N.Y. CVP. LAW § 2303: NY Code – Section 2303: Process Service Rules and Laws Serving  subpoenas; payment of fees in advance

(a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons, except that where service of such a subpoena is made under subdivision two or four of section three hundred eight, the filing of a proof of service shall not be required. Service shall be deemed complete upon the later delivery or mailing of the subpoena if made under subdivision two of section three hundred eight. Upon the later of the subpoena’s affixing or mailing if made under subdivision four of section three hundred eight. Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee. A copy of any subpoena duces tecum served in a pending civil judicial proceeding shall also be served, in the manner outlined in rule twenty-one hundred three, on each party who has appeared in the civil judicial proceeding so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things. (b) A child support subpoena issued under section one hundred eleven-p of the social services law to public utility companies and corporations, including but not limited to cable television, gas, electric, steam, and telephone companies and corporations, as defined in section two of the public service law, may be served by regular mail, or through an automated process where the information sought is maintained in an automated database. All other child support subpoenas issued under section one hundred eleven-p of the social services law shall be served by the subdivision provisions (a) of this section.

For information on serving legal papers, contact a Professional Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

N.Y. CPL. LAW § 610.50: NY Code – Section 610.50: Securing attendance of witness by subpoena; fees

1. A witness subpoenaed by the people in a criminal action is entitled to the same fees and mileage as a witness in a civil action, payable by the treasurer of the county upon the certificate of the court or the clerk thereof, stating the number of days the witness actually attended and the number of miles traveled by him to attend. In any such action, the court may, by order, direct the county treasurer to pay such witness a further reasonable sum for expenses, to be specified in the order. Upon producing the order or a certified copy thereof, the county treasurer must pay the witness the sum specified therein out of the county treasury. Such certificates shall only be issued by the court or the clerk thereof upon the production of the witness’s affidavit, stating that he attended as such either on subpoena or request of the district attorney, the number of miles necessarily traveled, and the duration of attendance. An officer in any state department who attends as a witness under this section in his official capacity, or in consequence of any official action taken by him, and who receives a fixed sum instead of expenses, or who is entitled to receive the actual expenses incurred by him in the discharge of his official duties, is not entitled to the compensation herein provided. 2. A witness subpoenaed by the defendant in a criminal action is not entitled to of right to witness and mileage fees. Still, the court may, in its discretion, by order, direct the county treasurer to pay to such a witness a reasonable sum for expenses to be specified in the order. Upon producing the order or a certified copy thereof, the county treasurer must pay the witness the sum specified therein out of the county treasury.

For information on serving legal papers, contact a Professional Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

N.Y. CPL. LAW § 610.25: NY Code – Section 610.25: Securing attendance of witness by subpoena; possession of physical evidence

1. Where a subpoena duces tecum is issued on reasonable notice to the person subpoenaed, the court or grand jury shall have the right to possession of the subpoenaed evidence. Such evidence may be retained by the court, grand jury, or district attorney on behalf of the grand jury. 2. The possession shall be for a period of time and on terms and conditions, as may reasonably be required for the action or proceeding. The reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things, (a) the good cause is shown by the party issuing the subpoena or on whose behalf the subpoena is issued, (b) the rights and legitimate needs of the person subpoenaed and (c) the feasibility and appropriateness of making copies of the evidence. The cost of reproduction and transportation incident thereto shall be borne by the person or party issuing the subpoena unless the court determines otherwise in the interest of justice. Nothing in this article shall be deemed to prohibit the designation of a return date for a subpoena duces tecum before trial. Where physical evidence specified to be produced will be sought to be retained in custody, a notice of such fact shall be given to the subpoenaed party. In any case, where the court receives or retains evidence before trial, it may, as may otherwise be authorized by law, grant the issuing party a reasonable opportunity to inspect such evidence.

For information on serving legal papers, contact a Professional Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

N.Y. CPL. LAW § 610.20: NY Code – Section 610.20: Securing attendance of witnesses by subpoena; when and by whom subpoena may be issued

1. Any criminal court may issue a subpoena for a witness’s attendance in any criminal action or proceeding in such court. 2. A district attorney, or another prosecutor where appropriate, as an officer of a criminal court in which he is conducting the prosecution of a criminal action or proceeding, may issue a subpoena of such court, subscribed by himself, for the attendance in such court or a grand jury thereof of any witness whom the people are entitled to call in such action or proceeding. 3. An attorney for a defendant in a criminal action or proceeding, as an officer of a criminal court, may issue a subpoena of such court, subscribed by himself, for the attendance in such court of any witness whom the defendant is entitled to call in such action or proceeding. An attorney for a defendant may not issue a subpoena duces tecum of the court directed to any department, bureau, agency of the state, or a political subdivision thereof, or any officer or representative thereof. Such a subpoena duces tecum may be issued on behalf of a defendant upon order of a court under the rules applicable to civil cases as provided in section twenty-three hundred seven of the civil practice law and rules.

For information on serving legal papers, contact a Professional Process Service, call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.