How to domesticate a foreign subpoena in California

This article will provide guidance on How To Domesticate a Foreign Subpoena in California. For a party to seek the issue of a foreign subpoena as per California UIDDA Service rules, the clerk of the superior court in the county where discovery is to be performed in this state must receive an original or a true and accurate copy of the foreign subpoena. Under this law, requesting a subpoena does not constitute a court attendance, according to California UIDDA Service. 

Any party not represented by an attorney should have their contact information included in the subpoena, as should all attorneys of record in the case, to comply with California UIDDA Service.

Uniform Interstate Depositions and Discovery Act (uidda)-California

The clerk of the superior court must quickly issue a subpoena for California UIDDA Service on the person to whom the international subpoena is addressed when a party submits it. According to California UIDDA Service, a subpoena issued must incorporate words from the foreign subpoena to be valid.

Any party not represented by counsel must also be included, along with their contact information, in the subpoena, as well as the names, addresses, and telephone numbers listed. It must provide the name and case number of the case from outside of the state to which it refers and the name of the court that issued it. 

In California, a nonparty deponent may object to a proposed deposition if the designated location does not conform with the California Code of Civil Procedure standards. There are geographic restrictions on where a nonparty deposition may be conducted. Within seventy-five miles of the deponent's domicile; or within a hundred and fifty miles of the deponent's residence in the county where the matter is underway, a resident nonparty may be ordered to present at a deposition according to California UIDDA Service.

NONPARTY DISCOVERY IN CALIFORNIA

A court ruling or an agreement between the parties cannot compel a nonparty to go beyond the specified boundaries. Nonparties not California residents at the time of California UIDDA Service cannot be forced to appear in California for a deposition, as a usual rule. However, the state's laws in which out-of-state nonparty lives may require them to appear at a deposition or provide evidence. 

To comply with California UIDDA Service law, a deposing party can be required to use a non-standard process, such as the Uniform Interstate Deposition and Discovery Act (UIDDA) or the Uniform Foreign Depositions Act (UFDA). Subpoenaing parties may need to get a "commission" from the court where the case is ongoing to allow the deposition to be conducted outside the forum state if the nonparty's state has adopted the UFDA or certain nonuniform state processes. The clerk of the superior court where the case is proceeding will issue a commission upon request from the deposing party.

REQUIREMENTS FOR SUBPOENAS OUT OF THE STATE

The subpoenaing party in California does not need to get a commission for discovery outside of the state. When a nonparty's home state has implemented the UIDDA, the forum state does not need to provide permission. The UIDDA has been implemented in California. California's version of the UIDDA requires the deposition party to submit a copy of the subpoena to the court clerk in the nonparty deponent's home state, where the deponent lives, and arrange for service of the subpoena in accordance with the California UIDDA Service laws. 

Whether a nonparty deponent sought a trial witness's fees and travel expenses, he or she is entitled to the same compensation. When the nonparty is served with the subpoena for the deposition or shows up for the deposition, the paying party must provide the payment. In the case of a subpoena for "business records," there are no expenses for the nonparty served with the subpoena.

ARBITRATION DISCOVERY SUBPOENAS IN CALIFORNIA

There is a debate over whether or not arbitrators are permitted to issue subpoenas for producing nonparty documents. If necessary, arbitrators can issue subpoenas to non-parties requiring their attendance and the production of relevant records and evidence. However, the ability of an arbitrator to issue subpoenas for prehearing discovery is restricted. Arbitrators cannot issue prehearing discovery subpoenas for nonparty documents without legislative authorization or as specified in the arbitration agreement. 

California's Discovery statutes allow an arbitrator to summon non-parties in personal injury and wrongful death cases is a source of legislative power. The arbitrator cannot use the power conferred under the act if the arbitration agreement does not provide for nonparty discovery. 

After 2020, a new amendment to California's Civil Procedure Code, Section 2031.280(a), requires that all responsive California UIDDA Service documents be identified with a "specific request number" to which the documents are responding, eliminating the option for parties to produce documents as they were kept "in the usual course of business." 

Knowing the California UIDDA Service laws where the non-party is a resident is vital. An enforcement motion must be filed in the state where the deponent resides, and it is subject to that state's laws. The California UIDDA Service regulations in which the deponent resides also apply to questions surrounding discovery conflicts. 

There must be a "reasonable opportunity" to find and produce any indicated papers in a deposition subpoena requiring the production of documents. The subpoena must be served at least fifteen days before the day of production or at least twenty days from the date of issue, whichever date is later, for California UIDDA Service to be effective. Deponents summoned to testify in person by subpoena must be given enough time to travel to and from the location of their deposition. According to the facts of the case and the extent of the requested information, a reasonable amount of time may or may not be allowed for discovery, as per California UIDDA Service. At least ten days after the deposition subpoena is delivered, the date for the deposition is often determined. 

JURISDICTION FOR A FOREIGN SUBPOENA IN CALIFORNIA

According to the Second District, there is no authority for trial courts in California to coerce an out-of-state witness to appear in person for an official deposition there. A foreign witness's deposition must thus be held in the deponent's county unless the parties agree otherwise under California UIDDA Service. Section 1989, which states that a party or non-party witness is not required to attend court unless they are a California resident, applies equally to trials and depositions. 

The court has the authority and discretion to order the attendance of a party deponent, even if it found that the trial court lacked the authority and discretion to order the attendance of a natural person at a deposition in California. Foreign parties, including those who are "most informed," "officer, director and managing agent and employee of a foreign party," must be served with the notice of their deposition by counsel of record. A penalty may be imposed if a deponent fails to meet their California UIDDA Service obligations.

USAGE OF LETTERS OF REQUEST

The Party's notification of a non-party or non-affiliated foreign deponent that they must appear may not be sufficient to force their presence. To take a foreign deposition, both parties and non-parties must obtain an order from the California court for a commission, a letter rogatory, or a letter of request (collectively "Request") to enlist the help of the foreign court. The party should examine the jurisdiction legislation where the deposition will be taken to determine the right form of the Request. The Request's content must meet all applicable criteria to comply with the California UIDDA Service and foreign jurisdiction laws. 

Anyone allowed to administer oaths under the laws of the United States or the country where the deposition is to be performed must be present at the time of the deposition to ensure compliance with the Code's California UIDDA Service requirements.  As soon as a subpoena or a court order requires the relevant foreign tribunal to have issued a deponent's appearance, the proponent must deliver it to the U.S. Department of State.

The taking of depositions is prohibited in several nations by legislation known as "blocking statutes." If parties fail to cooperate with an order of discovery, California courts may impose fines on them, even if the order contradicts a blocking law. 

There is no requirement for attorneys in California to invoke the Hague Convention to collect deposition testimony or documentary evidence. According to the Convention, letters of request or diplomatic or consular agents and commissioners may be used to obtain evidence. 

An agreement between the parties may be sufficient if the foreign nation authorizes lawyers to conduct depositions without the intervention of a foreign court. For instance, foreign courts or litigants are not prohibited in Canada from deposing a consenting party in a private civil proceeding. A letter of request to the proper Canadian court is necessary if a witness refuses to testify or if documents need to be produced as evidence.  One way for a California court to ask a foreign court for assistance is to send a letter of request ("Letter") to that court. 

An official letter must include [A.]  the name and address of the authority issuing it and the authority requested to execute it, if known; [B.]  the names and addresses of parties/representatives to proceedings for which evidence is sought; [C.] the nature of those proceedings; and [D.] the evidence sought. An additional concern for the practitioner might be the parties' desire to be present throughout the proceedings.

Additional information that should be included in a Letter of Request would be the names and addresses of the persons to be examined, questions or subject matter of the questions to be asked;) the documents or other property to be inspected, and any requirement that oaths, affirmations, or special forms be used. 

The California court's seal and the judge's signature are required on all letters. Signing on the judge's behalf is inappropriate for the clerk to do. While court seals and judge signatures suffice in most nations, Triple Certification, in which the clerk certifies that the judge is the judge and vice versa, is required in a few. To prevent wasting time and money, it is essential to establish the California UIDDA Service regulations.

According to the Convention, letters should be translated into the language of the authority asked to carry them out. A decent rule of thumb is to submit two copies of the letter, one in English with the seal of the court where the evidence is sought and one in the language of execution, both in English with the seal of the court where the California UIDDA Service evidence is sought. 

For out-of-state witnesses, the UIDDA virtually eliminates the need for a separate subpoena from that required for in-state witnesses. If the discovery state does not use the UIDDA, getting testimony from inhabitants of that state becomes significantly more difficult. Before a subpoena may be issued in some of these jurisdictions, the court in the discovery state must issue mandates or letters of rogatory to the court in the trial state.

UIDDA California

Uniform Interstate Depositions and Discovery Act Adopted - 2009
Bill Number: n/a
Cal. Civ. Proc. Code § 2029-300; Cal. Civ. Proc. Code §§ 2029.350(a), (b); 2029.390
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(a) To request issuance of a subpoena, a party shall submit the original or a true and correct copy of a foreign subpoena to the clerk of the superior court in the county in which discovery is sought to be conducted in this state. A request to issue a subpoena under this section does not constitute making an appearance in the courts of this state.

(b) In addition to submitting a foreign subpoena under subdivision (a), a party seeking discovery shall do both of the following:

(1) Incorporate the terms used in the foreign subpoena.
(2) Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

(c) When a party submits a foreign subpoena to the clerk of the superior court in accordance with subdivision (a), and satisfies the requirements of subdivision (b), the clerk shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(d) A subpoena issued under this section shall satisfy all of the following conditions:

(1) It shall incorporate the terms used in the foreign subpoena.
(2) It shall contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
(3) It shall bear the caption and case number of the out-of-state case to which it relates.
(4) It shall state the name of the court that issues it.
(5) It shall be on a form the Judicial Council prescribes pursuant to Section 2029.390.

(Added by Stats. 2008, Ch. 231, Sec. 3. Effective January 1, 2009.)

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Sources

1. In accordance with Section 2029.390, the Judicial Council must establish a form for this purpose.

(Section 3 was added to the statutes on January 1, 2009, by Stats. 2008, Ch. 231).

2. California Civ. Proc. Code Section 2025.250(a). Section 2025.250 of the Civil Procedure Code(a)

3. Section 1989 of the California Civil Code

4. AOL Inc. v. Nam Tai Elecs., Inc. (custodian of Virginia corporation was required to produce business records under Virginia law for California action).

5. Section 2026.010(c) of the California Civil Code

6. Section 2026.010 of the California Civil Code (f).

7. Section 2026.010 of the Civil Procedure Code

8. Sections 2029.100 through 2029.900 of the California Civil Procedure Code.

9. If a subpoena request is made under Section 2029.300(a), it does not constitute attendance in the courts of this state."

10. To present for a deposition, a nonparty must pay $35 plus 20 cents for every mile traveled for one day of attendance—section 1986.5 of the California Code of Civil Procedure.

11. Section 2020.230 of the California Civil Code (a).

12. Section 1282.6 of the California Civil Procedure Code (subpoenas shall be served and enforced in compliance with Cal. Civ. Proc. Code Sections 1985 to 1997).

13. Section 1283.05. of the California Civil Procedure Code.

14. Veeco Instruments Inc. v. Aixtron, Inc. California's 52nd Circuit Court of Appeals, 52 Cal. 5th 360-377 (2020

15. 59 Cal. App. 5th 1011, 1033, Board of Registered Nursing v. Superior Court (2021) There is a more complicated, two-step procedure under the party discovery laws than the nonparty discovery statutes." First,... a party must serve a written answer declaring that the party will comply, that it cannot comply, or that it opposes compliance. Section 2031.210, sub. (a) of the Code of Civil Procedure ... As a follow-up, the party must provide documentation supporting its compliance claim.

16. Section 2029.600(a) of the Civil Procedure Code.

17. It was decided that the New York court should use its state law to evaluate the deponent's request to quash in Kapon v. Koch23 N.Y.3d 32, 34-35 (2014) Section 2029.500 of the California Civil Procedure Code (the state's equivalent of UIDDA)

18. Toyota Motor Corporation v. Superior Court (2011) 197 Cal. 4th 1107, 1106