HOW TO DOMESTICATE A FOREIGN SUBPOENA IN New York
The Uniform Law Commission promulgated the Uniform Interstate Depositions and Discovery Act (UIDDA) New York in 2010. Under the provisions of the CPLR, an out-of-state subpoena may be served in New York by either the clerk of the court in which the discovery is to take place or an attorney admitted to practice law in this state as per the UIDDA and New York.
As of January 1st, 2011, when a properly issued out-of-state subpoena is received, the County Clerk must, as a matter of formality, issue a local subpoena requesting discoverable evidence and people to be deposed. The local subpoena will be drafted in the same manner as the out-of-state subpoena and will also contain the full contact details of the out-of-state lawyers or pro se litigant as mandated by the UIDDA and New York laws required.
Uniform Interstate Depositions and Discovery Act (UIDDA)-New York
By adopting the Uniform Interstate Depositions and Discovery Act, which was passed to provide "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," the amendment to the C.P.L.R. brings New York into conformity with other states that have already adopted the Act. The County Clerk will compare the out-of-state subpoena with an in-state subpoena (to be prepared and provided by the person filing the out-of-state subpoena, along with a copy of the in-state subpoena lodged in the County Clerk's Office) as mandated by the UIDDA and New York. Upon payment of fifteen dollars (USD 15.00), the Court Clerk will time stamp the in-state subpoena as filed and return the same if the UIDDA and New York information required is the same as that asked in the out-of-state subpoena.
According to the UIDDA and New York, a party seeking to conduct discovery must submit an out-of-state subpoena for the issue to the county clerk where the discovery is to take place. A request for a subpoena issued under the UIDDA and New York does not constitute a court appearance in this state. Upon receipt of an out-of-state subpoena by the county clerk, the clerk must quickly issue a subpoena for UIDDA and New York service upon the person to whom the out-of-state subpoena is addressed.
The UIDDA provides a quick and cheap process for plaintiffs to depose persons from other states and get discoverable evidence in other jurisdictions. Before the UIDDA was passed in New York, attorneys needed a commission or letters rogatory from a New York trial court in order to get discovery from a court outside of New York for use in a New York trial. In order to enforce the New York Commission and get the requisite discovery, attorneys had to go to the foreign jurisdiction where the papers or witnesses were located and secure a second order from the foreign court. This time-consuming procedure was expensive and inconvenient since it often required the help of local attorneys.
Bypassing the UIDDA, New York has made it possible for lawyers to acquire discovery by presenting a subpoena to the clerk of the court in the state where the evidence or witnesses are situated. The subpoena is then issued for UIDDA and New York service by the court clerk, and no judge is involved. Subpoenas must be [A.]issued in accordance with the UIDDA and New York laws of the state where discovery is being sought, [B.] contain the contact information for all counsel of record and any party not represented by counsel, and [C.] be served in the same manner as is required by those laws. Subpoena challenges must be filed and decided according to the UIDDA and New York laws of the state where the discovery took place.
It is anticipated that the UIDDA and New York would lead to a far more efficient and cost-effective discovery procedure by reducing judicial monitoring and the need to retain local counsel in the discovery state.
HOW DEPOSITIONS WERE TAKEN BEFORE THE UIDDA
New York lawyers who needed foreign state discovery had to get a commission from the New York trial court and then go to the foreign jurisdiction where the papers or witness was situated to get a second order from the foreign court to execute the first order. This UIDDA and New York procedure often entails hiring an attorney licensed to practice law in a foreign country. To get a document or a deposition, the individual may need two separate court orders, which may be time-consuming and expensive.
Recently, the NCCUSL made a third attempt at harmonizing discovery practices among states. Uniform Interstate Depositions and Discovery Act (UIDDA) was passed on August 3rd, 2007, based directly on the Federal Rules of Civil Procedure 45. The UIDDA has been successful, whereas the other two attempts failed, and it has been implemented in New York.
HOW DOES INTERSTATE DISCOVERY TAKE PLACE IN NEW YORK
The UIDDA and New York interstate discovery process has been streamlined into a single procedure in UIDDA member states. The party issuing the subpoena must first get the document approved by a clerk of court in the same jurisdiction as the evidence. As a result, New York attorneys may seek discovery in another state with only one court order instead of two if that jurisdiction has also adopted the UIDDA.
Application to the court to alter, enforce, or quash a subpoena must also conform with the laws of the discovery state, as the UIDDA and New York procedures require. Foreign witnesses are afforded the same safeguards as those afforded by the laws of their home states if such UIDDA and New York provisions are in place. However, the UIDDA aims to give lawyers the advantages of a standardized interstate discovery procedure, such as reduced costs and increased efficiency with less court scrutiny. Despite the fact that several states, New York included, have implemented the UIDDA, the continued use of various interstate discovery techniques necessitates an analysis of the varying approaches used by the various states.
New York's CPLR 3102(e) has generally made it difficult for non-New York practitioners from UIDDA states to undertake discovery in New York without obtaining a mandate, writ, or commission from the foreign court. New York's acceptance of the UIDDA, CPLR 3119, allows out-of-state lawyers to sidestep this UIDDA and New York procedure. Foreign courts must send subpoenas to the county clerk where discovery is sought. In the alternative, a New York attorney is empowered to issue a subpoena upon receipt of an out-of-state subpoena. Legal professionals in New York authorized to issue subpoenas under this law may be engaged by out-of-state attorneys.
In return, parties involved in lawsuits filed outside New York will likely contact residents and companies to request depositions and discovery.
REQUIREMENTS OF AN OUT-OF-STATE SUBPOENA IN NEW YORK
In order to be valid in New York, the subpoena must incorporate the same UIDDA and New York terms used in the out-of-state subpoena and 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.
After a subpoena is issued, the UIDDA and New York-compliant subpoena must be served in accordance with the CPLR. Subpoena-related procedures (e.g., for protective orders or to enforce, quash, or alter the subpoena) must be filed as special proceedings in the highest court in the county where the subpoena is returnable since no action or UIDDA and New York process is underway before any court in New York.
Following the implementation of the C.P.L.R., the County Clerk is obligated to issue a local subpoena for discoverable UIDDA and New York documents and people to be deposed upon receipt of a legally issued out-of-state subpoena. The local subpoena will be worded in the same way as the out-of-state one and will also contain the full contact details of the out-of-state lawyers or the pro se litigant.
Following the same, when Court Actions receives a subpoena from a state other than its own, it will evaluate it in the same way as an in-state subpoena (to be drafted and presented by the party submitting the out-of-state subpoena, along with the original out-of-subpoena). For the requisite filing fee of ten dollars (USD10.00), Court Actions will execute the in-state subpoena and return the UIDDA and New York documents if the information sought in the out-of-state subpoena is the same as that sought in the draft in-state subpoena and otherwise conforms with 3119.
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1. A subpoena must include the names, addresses, and telephone numbers of all counsel of record in the action to which the subpoena pertains and of any party not represented by counsel; and integrate the phrases used in the out-of-state subpoena.
2. The National Conference of Commissioners on Uniform State Laws ("NCCUSL") has issued the Uniform Interstate Depositions. Discovery Act ("UIDDA"), which New York State has now accepted and thirty-one (31) additional U.S. States. Section 3119 of New York's Civil Practice Law and Rules are where the state's UIDDA regulations may be found (See 31 C.P.L.R. 3119).
3. Under CPLR 3119(b)(1)
4. Subpoena under CPLR 3119(b)(4)
5. As soon as that occurs, one of the main obstacles to using state courts instead than federal ones will be gone. New York state court attorneys are gaining new tools to effectively defend their clients as a result of the increased efficiency with which they may conduct pretrial discovery.
6. Therefore, New York lawyers should expect to be approached for advice and perhaps hired to aid plaintiffs in their pursuits
7. Any "individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity" is subject to a subpoena under CPLR 3119, which compels them to "attend and give testimony at a deposition;" "produce and permit inspection and copying of designated books, documents, records, electronic data, and other tangible things"; and "permit (CPLR 3119 [a]  and [a]  [i]-; see also CPLR 3119 [d] [noting that CPLR 2303, 2305, 2306, 2307, and 2308 apply to subpoenas issued under CPLR 3119 [b]).
8. CPLR 3119 [b] ).
9. CPLR 2303 (New York attorney must serve the subpoena in the same manner as a summons and prepay a witness fee for travel and attendance) (CPLR 3119 [c])
10. CPLR 3119 [e]
11. To bring New York in line with other states that have adopted the Uniform Interstate Depositions and Discovery Act, which was passed to create "...an efficient and inexpensive procedure for litigants to depose out-of-state individuals and for the production of discoverable materials that may be located outside of the trial state," this amendment to the C.P.L.R.
12. The caption must include the parties' full names as they appear in the originating court and the name of the appropriate court (the Supreme Court of the State of New York, County of Suffolk).
- Provide the deponent's and the recipient's full names and mailing addresses.
- The language used in the out-of-state subpoena must be included.
- Please include the deposition's date, time, and place. If discovery is being requested, please provide the documents, location, and due date at least 20 days after service is made.
- Indicate whether or not a person's physical presence is necessary for a deposition or if papers may serve as a substitute.
- Include a "Failure to comply" paragraph that details the repercussions of not complying.
- Find the incident that happened in another country (originating county, court, state, case number),
- Include the following legend: Presented in accordance with the requirements of the Uniform Interstate Deposition and Discovery Act (CPLR 3119).
- Include the names, addresses, and phone numbers of ALL lawyers of record, any unrepresented parties, and any relevant facts about your case.
- Incorporate space for the attorney's signature below the closing.