HOW TO DOMESTICATE A FOREIGN SUBPOENA IN Massachusetts
This article will provide guidance on How To Domesticate a Foreign Subpoena in Massachusetts. While the Massachusetts approach has remained unchanged, the Uniform Interstate Deposition and Discovery Act have been adopted by many states, including New Hampshire, Vermont, and New York. To streamline and standardize the procedure of issuing subpoenas in the witness state court to ensure that the non-party witness complies with the necessary discovery and deposition, the UIDDA was established.
When a case is underway in state court, it is common for the parties to seek discovery in another country. Under Federal Rule of Civil Procedure 45, a subpoena may be issued from a U.S. District Court in the foreign country where the discovery is sought, thereby giving federal court lawyers practically countrywide subpoena authority.
Uniform Interstate Depositions and Discovery Act (UIDDA)-Massachusetts
There are no restrictions on what information can be obtained through discovery so long as it is not privileged and is relevant to the case at hand, including the claim or defense of either the party seeking it or the claim or defense of the opposing party. This includes information about books, documents, and other tangible objects, as well as the identity and location of anyone with knowledge of them. As long as the requested information likely leads to admissible evidence, an objection to its admissibility at trial is not warranted.
Interrogatories are written questions asked to a party in an effort to obtain information that may be used in the prosecution or defense of a case. Answers to interrogatories must be signed by the replying party under penalty of perjury, making them the legal equivalent of sworn evidence. In a deposition, a witness testifies under oath in front of a judge or jury without the presence of a judge or jury. Parties conduct depositions largely to obtain material that supports their legal claims and undermines the opposing side's arguments.
For the purpose of supporting or opposing summary judgment motions or at trial, parties may utilize ‘written petitions for admission’ to gain admissions of facts. A written request may be put forward so that another party gives specified papers or other physical objects so that they may be examined and copies made.
HOW ARE SUBPOENAS REQUESTED IN MASSACHUSETTS
Subpoenas for ‘papers alone’ may be issued by Massachusetts practitioners to non-parties under the new modifications. Non-party depositions are no longer required where the main purpose is to secure the production of documents by the parties.
It is now possible to issue subpoenas for the production of mere documents under the modified Mass. R. Civ. P. 45(b), and the subpoena ‘may specify the form or formats in which electronically stored material is delivered in addition to the subpoenas for presence. Previously, non-parties were required to show up at the Keeper of the Records deposition with the requisite papers after receiving a notice of deposition and a subpoena duces tecum.
As an alternative, the non-party would deliver the requested papers to the issuing attorney, who would then waive their appearance at the deposition by signing a sworn certification. The individual no longer has to be in person at the location of production or inspection unless they are also required to do so for a deposition, hearing, or trial if they get a ‘papers only’ subpoena. Sending the papers directly to the attorney who issued the subpoena is all required.
An issuer of subpoenas, therefore, must take reasonable measures to avoid putting an unreasonable hardship or cost on a subpoena target. It is the receiving party’s responsibility to serve an objection to a subpoena within ten days of receiving it and must do so on all parties. As soon as an objection is raised, the issuing party is obligated to prove its need for the papers through an order to compel.
DIFFERENCES BETWEEN MASSACHUSETTS DISCOVERY AND THE UIDDA
There are substantial disparities between the Massachusetts rule and the federal rule. Massachusetts mandates that all parties to the case must be served with a copy of a ‘papers only’ subpoena prior to its serving on a third party. This varies from the federal regulation, which mandates that all parties be served with notice and a copy of the subpoena. The Massachusetts regulation allows a copy of the subpoena to function as an acceptable notification that a subpoena has been served, eliminating an unnecessary step. When a subpoena has been issued, the issuing party must serve copies of any objection to the subpoena to all parties. This is unlike the federal norm. Notice of production or a copy of the documents must also be sent to all other parties by the party providing the papers.
These changes are intended to improve the efficiency of the civil process. Non-parties who just need to provide papers may avoid being served with subpoenas and notices of depositions, which will save up time for the parties who are serving them with subpoenas.
HOW TO TAKE A DEPOSITION OUTSIDE MASSACHUSETTS
Taken outside the Commonwealth, commissions or letters rogatory issued by the government have a different procedure. A deposition may be taken outside of the Commonwealth to acquire testimony, papers, or other evidence in a case that is currently active in Massachusetts.
On reasonable notice to all parties, a written notice setting forth the time and location of the deposition, as well as the name of each person to be examined, if known, and if not, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title of the person before whom the deposition will be taken, must be sent. There is no need for the deposition to be conducted before a person authorized to administer oaths by local law, common law in this commonwealth, or US federal law.
Appropriate authorities in (state or nation) may be addressed in an official letter rogatory. The parties may define the method and time, and location in which the proceedings will take place. A person specified by the stipulation should be able to administer any appropriate oath by virtue of his designation. Notice and an application to the court are required in order for a commission or letter rogatory to be issued. The taking of a deposition in any other method is not required to be unfeasible or difficult for the issuing of a commission or a letter rogatory, and both may be granted in legitimate instances.
Persons having their primary place of residence or their place of business in the commonwealth may be ordered by a commonwealth court to provide evidence or documents for use in an outside tribunal. Any interested party or in response to a letter rogatory may request the order. It may prescribe the practice and procedure, which may be entirely or partially the practice and procedure of the tribunal outside this commonwealth, for taking testimony or statement or supplying the documents and other things for taking the testimony or statement or producing them. As long as the order does not specify differently, practice and procedure must follow the rules of the commonwealth court that made the order.
People may be called and required to testify on behalf of another state or authority in the same way and under the same penalties as witnesses before courts. Any judge of the peace, notary public, or state or federal commissioner may be used to take such a deposition in the commonwealth or in a jurisdiction where the action is already being litigated. Witnesses may be called and required to attend before such a commissioner if the deposition is taken before a judge of the peace or notary public in the commonwealth.
SERVING A SUBPOENA IN MASSACHUSETTS
A subpoena issued in Massachusetts is often prepared by the same attorney conducting the deposition. To serve a subpoena, a constable or process server is usually summoned, and their main duty is to place a copy of the subpoena in front of the witness. In a civil matter, a deposition subpoena may be issued without a court order. Public notaries may issue civil subpoenas under the Massachusetts General Laws and Massachusetts Rules of Civil Procedure and Domestic Relations.
An objector to deposition participation has recourse: they may apply for a petition to quash in court where the civil matter is already being litigated. According to Massachusetts law, a notarized subpoena may have the same legal weight as an order from the court, and a witness who fails to comply can be held in contempt of court for ignoring the subpoena's order. This might have significant consequences.
Obtaining a letter rogatory is how a discovery request is officially kicked off in Massachusetts courts. Under the laws of comity, the Massachusetts courts ask the other state's courts to help them and ensure that the discovery may be enforced by subpoena in the other state by submitting a letter rogatory.
A letter rogatory is a particular request in the motion for a letter from the court where the matter now sits. When a Massachusetts court issues a letter rogatory, it is making an official request to the court in the state where the witness lives, resides, or may be served. Using the enforcement authority of the witness court over witnesses residing in its jurisdiction, this letter rogatory asks assistance from the Massachusetts court in obtaining the presence of the witness for deposition or discovery. It is then filed in the various activities in the witness state court by counsel admitted in the other state, and a subpoena to the witness is issued in the witness state court case (filed for the sole purpose of securing subpoena power) within the time and distance and other limitations of the local state law for witness subpoenas. If a witness fails to appear for subpoena serving, the local court has the authority to execute the subpoena.
MASSACHUSETTS AND THE UIDDA
A number of states have adopted the Uniform Interstate Deposition and Discovery Act, but the Massachusetts method has not been altered. For the purpose of ensuring that non-party witnesses comply with the appropriate discovery and deposition requirements, the UIDDA was formed.
The UIDDA does not affect the trial court's process for getting court permission for requested discovery. However, even if there was the approval of UIDDA in Massachusetts, this does not eliminate the need for a letter rogatory petition. There are certain efforts made by the UIDDA to speed up the procedure while in the witness condition.
When the witness state accepts the UIDDA, a Massachusetts letter rogatory (the document authorizing the continuation of a deposition or discovery) and a Massachusetts subpoena are generally necessary. As required under Massachusetts law, the summons and letter rogatory are then delivered to the witness state for further processing (witness jurisdiction). Under UIDDA, subpoenas are sent to the appropriate court in the witness state (together with additional papers, such as rogatory letters and Massachusetts subpoenas). The subpoena for the witness state is then issued (signed) by a clerk or judge in the witness state. In Massachusetts, subpoenas are served in line with the state's process.
The UIDDA claims to remove the need for out-of-state counsel to bring an action in the witness state court to acquire the witness state subpoena to issue, although the process may still be cumbersome. Obtaining and serving a subpoena on the witness would be sufficient to assure that he or she arrives. Relying on state court action is only an option if the witness fails to show up as scheduled in his or her state court of residence.
MGL c. 223A §10; MGL c. 223A, § 11; MGL c. 233, § 45
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A court of this commonwealth may order a person who is domiciled or is found within this commonwealth to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this commonwealth. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this commonwealth, for taking the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with the court of this commonwealth issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have the power to administer any necessary oath.
1. While in state court, lawyers must traverse the special processes and regulations of the foreign state to issue and enforce subpoenas in order to get discovery
2. Rules of Civil Procedure 26(b) of the Massachusetts Rules of Civil Procedure (1).
3. An individual may obtain permission under Massachusetts Rule of Civil Procedure No. 34 to enter into property owned or controlled by a third party in order to conduct tests or other inspections on the premises and take photographs and samples, among other things. — Section 11 of the Massachusetts Discovery Practice Act. Examinations of the body and mind.
4. The Massachusetts Supreme Judicial Court has updated subpoenas in Rule 45 of the Massachusetts Rules of Civil Procedure.
5. Beginning on April 1, 2015, the modifications were in effect.
6. It was decided that in order to keep pace with the Federal Rules of Civil Procedure, the Supreme Judicial Court modified Mass. R.Civ.P. 45.
7. notwithstanding the modifications to Mass R. Civ. P. 45. Mass R. Civ. P. 45(d)(1)
8. A court of this commonwealth may order a person who is domiciled or is found within this commonwealth to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this commonwealth. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this commonwealth, for taking the testimony or statement or producing the documents or other things.
To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with the court of this commonwealth issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have the power to administer any necessary oath.