HOW TO DOMESTICATE A FOREIGN SUBPOENA IN MISSOURI
This article will provide guidance on How To Domesticate a Foreign Subpoena in Missouri. Suppose Missouri adopts the Uniform Interstate Depositions and Discovery Act (UIDDA) Missouri. In that case, subpoenas issued in other states may be filed and executed at a lower cost and more efficiently for all parties.
Although HB 2570 was sent to the Judiciary Committee in May 2020 but never heard, the state of Missouri took the first step toward joining UIDDA in the 2021 legislative session. Missouri courts will accept subpoenas from foreign or out-of-state jurisdictions if the measure is reintroduced and enacted in the 2021 legislative session. This would allow out-of-state legal counsel to gather essential discoverable papers or personal testimony.
Uniform Interstate Depositions and Discovery Act (UIDDA)-Missouri
The Uniform Law Commission established the UIDDA in 2007. While some states quickly accepted the UIDDA, others have kept their processes for out-of-state subpoenas or have only embraced part of the safeguards specified by the UIDDA. However, as other states implement UIDDA, it is expected that Missouri will do likewise within the next several years.
The UIDDA facilitates the court procedure across states by allowing persons from one state to submit a subpoena for discovery without needing to pay extra legal representation in a neighboring state. As an alternative, parties might transmit the original subpoena issued in their state to the court clerk of the secondary state. By issuing another subpoena, the clerk will ensure that it has the same terms and information as the original.
If the new subpoena is to be issued, legal counsel will need to be conversant with the laws of the second state in order to issue the original subpoena properly. However, the new subpoena has the same legal authority as a subpoena issued by the state once it is issued. Due to the fact that there is no need to file a letter rogatory or a formal request to the court, the legal procedure is greatly sped up. It also eliminates potentially prohibitive court scrutiny, as well as the expense of bringing in extra-legal counsel.
It was underlined in the bill that although a state clerk might issue a foreign subpoena inside Missouri, the demands of the new subpoena were needed to conform with all the Missouri Supreme Court norms of civil process and could not violate any existing laws or legislation in the state.
Additional requirements include the original language used in the foreign subpoena, the names, addresses, and phone numbers for all counsel of record, and any party not represented by counsel in any re-issued foreign subpoena issued in the state of Missouri. As a result, all parties were guaranteed the right to a fair trial regardless of where they lived.
HOW DOES MISSOURI ALLOW FOR INTERSTATE DEPOSITIONS
Missouri offers two ways to obtain the desired deposition. First, the individual may move ex parte in the circuit court in the county where the deponent is found for an order directing the issuance of a subpoena. Second, the individual may obtain a commission from the foreign state, as Missouri law requires that any person authorized by the commission be treated as having the same power as if authorized by a Missouri court.
The Missouri Supreme Court Rules and the Missouri Revised Statutes are the major bodies of law in Missouri that regulate subpoenas in civil actions. The numerous discovery subpoenas in the jurisdiction should be identified and described. In Missouri, a subpoena for a deposition requires a witness to attend in person at a predetermined location to provide testimony before an official authorized to administer oaths or a person chosen by the court to preside over the proceedings.
The clerk of the court may provide the applicant with blank subpoena forms. Subpoenas may be served on anybody in Missouri, regardless of their legal status. A non-party witness must be served with a discovery subpoena in accordance with Missouri law. To serve a discovery subpoena under Missouri law, the summons must be delivered in person to the witness, as well as any related travel expenses.
A particular number of days prior to the compliance date (for example, or reasonable time before the compliance date) should be allowed before the subpoena can be served on a non-party witness by the issuing party. A ten-day lead time is required for a subpoena to go into effect. Ten days prior to the due date, a document subpoena must be issued.
It is mandatory in Missouri that all parties in a lawsuit be given written notice at least seven days in advance of the planned deposition date if a non-party witness is to be deposed. It is required that all parties be supplied with copies of subpoenas for documents at least ten days before the due date for compliance.
Anyone in Missouri may be summoned to appear in court for the purpose of obtaining information from a witness under a discovery subpoena.
SERVICE OUTSIDE THE STATE
It is illegal for a discovery subpoena issued in Missouri to be served on a witness located outside of the state. To depose a witness who lives out of state, a party may apply to the court overseeing the case for a commission. The court must issue a commission or a letter rogatory for a witness in a foreign country.
The Uniform Interstate Deposition and Discovery Act has not been implemented in Missouri (UIDDA). A subpoena-enforcing court order in Missouri cannot be appealed directly. An appeal may be taken against a civil contempt order. While appealing a final verdict, appellate courts have the option of addressing a trial court's discovery decisions.
Writs of prohibition may be sought in the appellate courts by a party aggrieved by a court's decision to enforce a subpoena. However, the granting of such a remedy is discretionary. The circuit court in the county where the deponent is located may, upon ex parte application, make an order directing the issuance of a subpoena in aid of the taking of the deposition and having due regard for the laws and rules of such foreign jurisdiction may make such an order.
Suppose Missouri adopts the Uniform Interstate Depositions and Discovery Act (UIDDA). In that case, subpoenas issued in other states may be filed and executed at a lower cost and with more efficiency for all parties. Although HB 2570 was referred to the Judiciary Committee in May of 2020, the first step toward Missouri joining UIDDA was taken during the state's 2020 legislative session.
Subpoenas from ‘foreign’ or ‘out-of-state’ jurisdictions will be accepted by Missouri courts if the measure is reintroduced and enacted in the 2021 legislative session. This would allow out-of-state legal counsel to gather essential discoverable papers or personal testimony.
Subpoenas issued in one state may be sent to another through the clerk of that state. By issuing another subpoena, the clerk will ensure that it has the same terms and information as the original. If the new subpoena is to be issued, legal counsel will need to be conversant with the laws of the second state in order to issue the original subpoena properly. However, the new subpoena has the same legal authority as a subpoena issued by the state once it is issued. This cuts down on the time it takes to file a lawsuit by avoiding the need to submit letters rogatory to the court, which may take weeks or months to complete. In addition, it avoids the expense of engaging extra-legal counsel as well as possibly prohibitive court scrutiny.
Although the state clerk might issue a foreign subpoena inside the state, HB 2570 repeated the parameters for implementing the UIDDA, stressing that new subpoena demands must conform with the Missouri Supreme Court rules of civil process and cannot contradict any existing laws or legislation in the state.
Additional requirements include the original language used in the foreign subpoena, the names, addresses, and phone numbers for all counsel of record, and any party not represented by counsel, in any re-issued foreign subpoena issued in the state of Missouri. This safeguarded the right of each party to a fair trial, regardless of where they lived.
CHANGES IN DISCOVERY RULES
On March 2nd, 2021, the Missouri Supreme Court issued an order amending the Missouri Rules of Civil Procedure, effective September 2nd, 2021. The modifications are substantial. In adopting the proportionality requirement, restrictions on time and quantities of discovery, and other criteria pertaining to electronically stored material, they seem to generally align Missouri with the Federal Rules of Civil Procedure (ESI).
Rule 56.01 in Missouri is amended to eliminate the requirement that discovery must be "reasonably intended to lead to the discovery of admissible evidence." The amended Rule will require a court to limit the frequency or scope of discovery in certain situations if the court determines that [A.] the discovery sought is cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome, or less expensive; [B.] the party seeking discovery has had ample opportunity to obtain the information through discovery in action, or [C.] the proposed discovery is outside the scope of the action.
There are also restrictions on the time and number of depositions that may be performed, whether orally or in writing. Each side is restricted to ten depositions without court permission or agreement. Additionally, a party is not required to give discovery of electronically stored information from sources that are not reasonably accessible owing to unreasonable difficulty or expense. On an application to compel discovery for a protective order, the party seeking discovery must demonstrate that the requested material is not reasonably accessible due to excessive hardship or expense. Upon such a finding, the court may order discovery from such sources if the asking party demonstrates good cause.
In aggregate, these modifications make the Missouri Rules of Civil Procedure substantially comparable to, and in some circumstances identical to, the Federal Rules.
Missouri offers two ways to obtain the desired deposition. First, you may move ex parte in the circuit court in the county where the deponent is found for an order directing the issuance of a subpoena. Mo. Sup. Ct. R. 57.08. Second, you may obtain a commission from a foreign state, as Missouri law requires that any person authorized by the commission be treated as having the same power as if authorized by a Missouri court. Mo. Rev. Stat. §§ 492.100;492.270.
FOR ASSISTANCE DOMESTICATING AND SERVING A SUBPOENA IN Missouri
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1.Uniform Interstate Depositions and Discovery Act Adopted - 2020
Bill Number: HB 2570 Sponsor Veit
MO. SUPREME COURT R. 57.08; MO. ANN STAT. § 492.100
2. Mo. Sup. Ct. R. 57.08.
3. Mo. Rev. Stat. §§ 492.100;492.270.
4. for example, document subpoenas, subpoenas for deposition only, or combined deposition and document subpoenas
5. Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense.
(2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected.
6. Subpoena forms are available on the websites of several Missouri circuit courts.
7. Subpoenaing the non-party deponent to appear in court at least seven days before the scheduled deposition (Mo. Sup. Ct. R. 57.03(b)(1)).
8. Notifications should include
- The time when the deposition took place.
- The deposition location.
- Identifying information, such as a person's name and address if available, or a basic description of the person or organization to which the individual belongs.
- Specific information on what the deponent is expected to provide (the party may attach the subpoena duces tecum to the notice or include the list of documents or materials sought directly in the notice).
9. Subpoenaed witnesses who fail to appear, notwithstanding the payment of travel expenses and one day's attendance, are responsible for all damages unless they can prove an adequate reason to excuse their absence. ( 491.140, RSMo).
To compensate the witness, a daily fee of $25 is charged ( 491.280, RSMo). The cost of a mile is $0.10 (between 33.095 and 491.280 mo).
Paying fees through check is the most common method, although cash is also acceptable. A subpoena's expenses must be paid as soon as it is served on the witness or witness's representative Paying Late Has Serious Consequences. There may be no obligation to comply with a subpoena if the issuing party does not pay the witness and mileage expenses before the return date of the subpoena (Mo Sup Ct. R 57.09(d))
10. Teefey v. TEEFEY, 533 SW.2d 563, 566 (1976)
11. Taylor v, 566 SW3d 641, 655 (Mo. Ct App. 2018)
12. State ex. rel Crowden v. Dandurand, 970 S.W.2d 340, 342-44 (Mo. 1998
13. As provided in Rule 57.09
14. The UIDDA facilitates the court procedure across states by allowing persons from one state to submit a subpoena for discovery without needing to pay extra legal representation in a neighboring state. In order to serve a subpoena in Kentucky, for example, a Maryland resident does not need to engage a Kentucky lawyer.
15. UNIFORM INTERSTATE DEPOSITIONS
COMMITTEE ACTION: Voted ‘Do Pass’ by the Special Committee on Litigation Reform by a 9 to 0.
The 2021 bill creates the ‘Uniform Interstate Depositions and Discovery Act.’ It provides procedures and processes for when a subpoena for discovery or deposition is submitted in Missouri by a foreign jurisdiction, defined in this bill as a state other than Missouri.
PROPONENTS: Supporters say that majority of the country has already enacted this bill. Missouri will become compliant with current procedures with the bill. Testifying for the bill were Representative Veit, Arnie Dienoff; Kaitlin Wolff, Uniform Law Commission; and Uniform Law Commission.
OPPONENTS: There was no opposition voiced to the committee. Written testimony has been submitted for this bill. The full written testimony can be found under Testimony on the billing page on the House website.
16. Rule 56.01(b)(1) will now restrict the scope of discovery to material that is both relevant and "proportional to the requirements of the case in light of all the circumstances." The proportionality standard is identical to FRCP 26.
17. Under the previous regulation, there were no time constraints on depositions. It is held that unless otherwise decided or directed by the court, the duration of a deposition is restricted to one day and seven hours. The court may provide extra time in accordance with Rule 56.01 if it is necessary to examine the deponent fairly or if the deponent, another person, or any other event hinders or delays the examination.
18. The Order specifies that the new regulations will go into force on September 2, 2021. According to Rule 41.06, these rules will apply to ongoing cases "save to the extent that, in the court's judgment, their implementation in a specific action pending when the Rules take effect would be impracticable or would result in unfairness, in which case the prior process will apply."