HOW TO DOMESTICATE A FOREIGN SUBPOENA IN Delaware
This article will provide guidance on How To Domesticate a Foreign Subpoena in Delaware. A subpoena refers to any document issued by a court of record requiring a person to either attend and give testimony at deposition or produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the person's possession, custody, or control. A subpoena can also be enacted to permit the inspection of premises under the person's control.
A party requesting a subpoena submits to a clerk of the Superior Court or a clerk of the Probate Court in the district in which discovery is sought to be conducted. To request issuance of a subpoena, a party must submit a foreign subpoena to the county's prothonotary where discovery is sought to be conducted in this State. A request to issue a subpoena under this act does not constitute an appearance in the courts of Delaware.
Uniform Interstate Depositions and Discovery Act (UIDDA)-Delaware
When a party submits a foreign subpoena to a prothonotary in Delaware, the prothonotary, in accordance with the court's procedure, will promptly issue a subpoena for Delaware UIDDA Service upon the person to which the foreign subpoena is directed.
A subpoena issued must [A.] incorporate the terms used in the foreign subpoena; and [B.] 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.
If a foreign subpoena has been issued, the original or true copy of it and the form and the fee prescribed for a foreign subpoena should be provided with respect to any Delaware UIDDA Service action in the Superior Court or the Probate Court. It is unnecessary to appear in any court as per Delaware UIDDA Service rules if a subpoena is requested. The Office of the Chief Court Administrator and the Office of the Probate Court Administrator is responsible for determining the form that must be presented for any action in the Superior Court or the Probate Court.
In the event that a party files a foreign subpoena with the clerk of the Superior Court or the Probate Court, the clerk of the appropriate court should quickly issue a subpoena for Delaware UIDDA Service upon the person to whom the foreign subpoena is addressed. The subpoena should include the language used in the foreign subpoena and an affidavit of the party stating the names, addresses, and telephone numbers of all counsel of record in the proceeding, as well as an affidavit of the party stating the case caption and docket number of the matter pending in the foreign jurisdiction, as well as the name and address of Superior Court or the Probate Court,
In order for a clerk of the Superior Court to issue a subpoena, the Office of the Chief Court Administrator has established a form. A clerk of the Probate Court is required to issue a subpoena on a form provided by the Office of the Probate Court Administrator.
REGULATION OF SUBPOENA IN DELAWARE
The Court of Chancery and the Superior Court regulate Delaware UIDDA Service subpoenas in Delaware's courts. These principles are also included in the Court of Chancery and Superior Court Rules of Civil Procedure, which govern subpoenas. Subpoenas seeking depositions, documents, or both are all examples of several discovery subpoenas available in Delaware’s jurisdiction. According to Delaware law, there are only two subpoenas available: [A.] ad testificandum (testimony) and [B.] duces tecum (document or premises examination).
Testimonial subpoenas (subpoenas ad testificandum) compel the responder to testify in a deposition or at trial. Prosecutors may issue subpoenas for producing books, papers, or physical goods or ask for permission to investigate the respondent's property. Subpoenas for electronically stored information (ESI) are permitted under Rule 45 of the Court of Chancery Rules.
A subpoena can't demand that a non-party reply to interrogatories or petitions for admission. The Register in Chancery, or any Delaware attorney (as an official of the court) in the Court of Chancery, may issue a subpoena.
According to Delaware, the Uniform Interstate Depositions and Discovery Act has been implemented. Delaware's Superior Court has the authority to issue a subpoena for the individual mentioned in a subpoena issued by a non-Delaware court under this statute. Extensive instructions and a sample subpoena accompany subpoenas issued under the Uniform Interstate Depositions and Discovery Act.
The Court of Chancery and the Superior Court also need Delaware UIDDA Service permission for a testimonial subpoena to depose an inmate. Courts have the authority to issue subpoenas for the testimony of judges who have been subpoenaed to testify about their official activities. The trial judge in any Delaware court cannot be called as a witness in that trial.
HOW CAN A SUBPOENA BE VALID UNDER THE UIDDA
In order for a subpoena to be valid, it must include [A.] a civil action number and a name for the court that issued the summons; [B.] the command to testify, produce papers, or allow inspection of premises; [C.] the time and location for the testimony, production, or inspection. Command to testify, produce documents, or allow inspection of premises. If a subpoena requires Delaware UIDDA Service papers, the documents must be specified in the subpoena itself.
There must be reasonable precautions to avoid placing an excessive hardship on the individual who receives a subpoena or the attorney responsible for its issue and Delaware UIDDA Service.
An official subpoena must state the county where the subpoena was issued, as well as the name of the court in which the matter is currently proceeding. Requests from any party may be granted by the court to issue a blank subpoena, which any party can use in the case. In addition, a generic subpoena form is available from the Court of Chancery.
Under the Uniform Interstate Depositions and Discovery Act, the Superior Court offers a form for submitting a subpoena.
SERVICE OF A SUBPOENA
The sheriff or deputy may serve a subpoena under the Delaware UIDDA Service regulations of the Court of Chancery. The sheriff may serve a subpoena under the norms of the Superior Court Rules. Delaware courts may subpoena only residents of Delaware. There may be requirements for the party wishing to subpoena someone who lives outside of Delaware to get a commission from the Delaware court.
The production of papers by a party to a lawsuit cannot be compelled via the use of document subpoenas. In order to get Delaware UIDDA Service documents, a party requesting discovery must follow the standard discovery procedure and, if the opposing party is unwilling, file a petition to compel. In the same way, the courts in Delaware do not need a testimonial subpoena of a party to action since the courts in Delaware have the inherent authority to force a party to an action to testify, including officials, directors, and controlling agents of an organization.
In the Superior Court, the deposition of court officials must be granted by the court if the question relates to their official responsibilities. Non-party witnesses in Delaware may be served a copy of a discovery subpoena by delivering it to the individual identified. In order to receive Delaware UIDDA Service, Delaware companies are required to have a registered agent. A registered agent may be used to fulfill a party's needs on a business or other entity. Also, remember that the Court of Chancery encourages parties to enable discovery involving their registered agents, particularly in accelerated processes.
The issuing party must serve a discovery subpoena on a non-party witness before the compliance date mentioned in the subpoena at least a set number of days before the compliance date. An issuer of a discovery subpoena must provide a non-party witness a reasonable amount of time to comply with the subpoena, as set out in the Delaware Code of Criminal Procedure and the Delaware Code of Superficial Civil Procedure. The specifics of a particular scenario substantially weigh in on whether or not a specified time is appropriate. An expedited case's reasonable time will be much shorter than a non-expedited case's.
CONTENTS OF A DISCOVERY SUBPOENA
For non-party witnesses, a Delaware UIDDA Service notice must be sent to all parties prior to the service of a discovery subpoena if the subpoena requires the production of papers, electronic information, or physical goods.
The Delaware UIDDA Service notice must be provided in accordance with the rules of the Court of Chancery or Superior Court Rules of Civil Procedure. It is necessary to file proof of Delaware UIDDA Service, which must include a statement of the date and manner served, the names of the persons served, and an affidavit stating that the notice was delivered.
There must be a Delaware UIDDA Service notice that includes the date, time, and location of the examination, as well name and address of everyone who will be examined if they are known. In addition, the Delaware UIDDA Service notice must also include a general written description that will allow the person being examined to be identified if their name and address are unknown. If a document subpoena is also issued on the deponent, the designation of the items to be produced as indicated in the subpoena.
Depositions on written questions must include the information in the Delaware UIDDA Service notice, addressing it via a copy of the questions, specifying the names and addresses of the deponents, if any, and a general written description sufficient to identify the person who is to be deposed or the specific group or class to which they belong. The name or descriptive title of the officer before the deposition is to be taken, as well as their address and phone number, should also be included.
For a subpoena to be valid in the Superior Court of Delaware, Delaware UIDDA Service must originate from the county where a subpoena for testimony, production, or inspection of premises in a non-Delaware case will result in the testimony, production, or inspection. For proceedings in the Court of Chancery, there are no in-state restrictions on the Delaware UIDDA Service of a subpoena.
If a non-party witness is situated beyond the jurisdiction of the issuing court, a subpoena must be obtained there according to the norms of that jurisdiction. The party may seek a subpoena in accordance with the Uniform Interstate Deposition and Discovery Act if the other jurisdiction has approved it.
Attendance costs are two dollars per day, with transport being three cents per mile both ways to and from the location of the testimony is three cents. A non-party witness may be ordered to provide information to a party. The movant must give all parties and individuals impacted by the proposed order adequate notice.
If the discovery occurs in Delaware, the motion must be filed with the Delaware court of record. Outside of Delaware, the court must be used to file a motion if the discovery is taking place outside of Delaware. Unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust, the responding party must pay the reasonable expenses incurred in bringing the motion, including attorneys' fees, if the motion is granted or the responding person complies with the subpoena after the motion was filed.
If a person refuses to comply with a subpoena, they may be held in contempt of court. Because a subpoena's judgment is interlocutory, the appellate court's rule on interlocutory appeals governs appeals from the trial court. There is no appealable judgment until the trial court makes a final judgment if the applicable court rule prohibits interlocutory appeal.
Usually, the ultimate judgment must be based on the core issue. Contempt orders for failing to comply with a subpoena are final judgments and immediately appealable. As long as the lower court relied on "a strictly legal issue," the appeal court might reconsider the lower court's conclusion.
Uniform Interstate Depositions and Discovery Act Adopted - 2010
Bill Number: SB 260 - Sponsor Blevins
DEL. CODE tit. 10, § 4311
Delaware Subpoena forms Click Here
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1. The Court of Chancery provides informal advice on subpoenas in the Guidelines to Assist Lawyers Practicing in the Court of Chancery.
2. Rule 45 of the Delaware Supreme Court Civil Procedure Rules
3. Rule 30 pertains to oral depositions, whereas Rule 31 pertains to written depositions (motions to compel).
Under Rule 137 of the Court of Chancery Rules, Masters are granted subpoena powers under the Superior Court Rules of Civil Procedure.
4. There is no explicit reference to ESI in the Superior Court Civil Rules or the rules of other Delaware state courts. However, subpoenas in the Superior Court and other Delaware state courts are commonly used by Delaware practitioners to obtain ESI.
5. Ridgeway v. Bender, 2004 WL 2050283
6. Those provisions should be included in a full Delaware subpoena submitted to a court by that party. In accordance with Section 4311 of the Delaware Code,
7. Del. Ch. Ct. R. 30(a); Del. Super. Ct. Civ. R. 30(a)
8. Del. Super. Ct. Civ. R. 30(j) states that it is permitted to depose Superior Court workers about the execution of their official responsibilities in the Superior Court.
9. Del. Super. Ct. Civ. R. 45(a)(1); Del. Ch. Ct. R. 45(a)(1).)
10. Del. Super. Ct. Civ. R. 45(b)(1) states that a subpoena may be served by any non-party who is at least 18 years old (Delaware court rules).
11. Del. Super. Ct. Civ. R. 45(b)(1); Del. Ch. R. 45(b))
12. Davis v. Town of Georgetown, 2001 WL 541471, at *2, Del. Super. Ct. Apr. 27, 2001; Van Sant v. Ross, 171 A.2d 910, 912-13, Del.
13. Rule 45(a)(2) of the Delaware Supreme Court Civil Procedure Rules
14. In Acierno, 578 A.2d 1097, 1097 (Del. 1990); Del. Supr. Ct. R. 42), failure to follow a subpoena is civil, not criminal, contempt.