HOW TO DOMESTICATE A FOREIGN SUBPOENA IN South Carolina
This article will provide guidance on How To Domesticate a Foreign Subpoena in South Carolina. South Carolina courts have resumed most activities after suspending or modifying non-essential judicial services in 2020 due to COVID-19, while local courts may impose specific restrictions affecting particular litigation (such as remote proceedings).
In South Carolina, subpoenas are governed by the South Carolina Rules of Civil Procedure (SCRCP.) The Uniform Interstate Depositions and Discovery Act UIDDA South Carolina govern subpoenas for proceedings in other states.
Uniform Interstate Depositions and Discovery Act (UIDDA)-South Carolina
A subpoena in the state of South Carolina may be issued on behalf of the court in which the attorney is admitted to practice law or by someone who works as a clerk in a court (typically on behalf of pro se litigants). The UIDDA and South Carolina service of any subpoena on a resident of South Carolina in connection with a proceeding in another state must be authorized by a court order or subpoena issued by the court. Foreign law, as per the UIDDA, and South Carolina may also need a subpoena for a witness or documents located outside of South Carolina for an action proceeding in South Carolina.
A subpoena must include the name of the issuing court, the civil action number, the court where the case is underway, and the name of the case. The subpoena will compel the receiver to appear at a deposition, provide papers for inspection or copying, or allow a search of the premises.
Form SCCA 254, which is used to issue subpoenas, does not include enough room for a subpoenaing party to specify the records it is demanding. A business, partnership, organization, or government entity must be named as the deponent in a subpoena, along with a fair description of the UIDDA and South Carolina subject matter that will be examined. A non-party organization must be informed in the subpoena that it must appoint one or more officers, directors, managing agents, or other people to testify on its behalf. The subpoena must specify the issues to which each of these individuals will testify.
DISCOVERY SUBPOENAS IN SOUTH CAROLINA
Subpoenas for discovery are often exclusively served on third parties, even though they technically may be served on parties as well. Subpoenas issued by a court in South Carolina but served in another state are invalid. A discovery subpoena in South Carolina must be served in the same manner as a summons and complaint. At the time of UIDDA and South Carolina service, the party issuing the discovery subpoena is also required to pay the witness and mileage expenses if the subpoena is for attendance at a deposition, trial, or hearing.
A subpoena may be issued to an unaffiliated party but sending the subpoena to the witness via mail is not acceptable. Subpoena service involves leaving a copy of the document with a responsible adult resident of the witness's home. It must be kept in mind that providing a copy to a person or entity duly authorized to accept UIDDA and South Carolina service of the process according to an appointment or the law. The applicant should send any important correspondence by registered or certified mail with a signature confirming receipt.
Service on a non-party witness in South Carolina must be done in a way that affords the witness a fair opportunity to comply with the process. In most cases, the issuing party will provide at least ten days' notice to a witness who is not a party to the proceeding. Any subpoena for a deposition in person must provide all parties with ten days' notice.
It is permissible to serve a subpoena anywhere in South Carolina. A subpoena issued in South Carolina must be personally served inside the state to comply with UIDDA and South Carolina. The issuing party must follow the out-of-process states for issuing and executing subpoenas in order to get discovery from a non-party witness located in the out-of-state.
THE UIDDA SOUTH CAROLINA
The Uniform Interstate Depositions and Discovery Act (UIDDA) enables an out-of-state petitioner to subpoena a non-party witness in South Carolina by delivering a foreign subpoena to the clerk in the county where the discovery will be performed. A South Carolina subpoena is issued swiftly by the clerk, blank for the asking party to fill out and serve on the selected non-party witness.
A party from South Carolina may acquire discovery in another jurisdiction by using the UIDDA's model procedure, provided that the other jurisdiction has likewise accepted the UIDDA. Failure to pay witness attendance and transportation fees carries no penalty under the UIDDA and South Carolina's Rules of Civil Procedure.
In South Carolina, a party issuing a discovery subpoena must first seek to address any issue with the witness or the witness's counsel via informal means before filing a motion in court. Non-dispositive motions need an acknowledgment from the moving attorney that they attempted to reach an amicable resolution with the opposing attorney. The party that issued the subpoena may file a motion to compel against a non-party witness if the party has been unable to settle any disagreements with the witness informally as per UIDDA and South Carolina. The non-party may be ordered to pay the moving party's fees and costs incurred in making the motion if the motion is granted.
Since UIDDA and South Carolina rulings on discovery are considered interlocutory, they are often not immediately appealable in South Carolina, suggesting that a nonparty who has been found in contempt for failing to comply with a subpoena may file an appeal. A person who wishes to appeal must do so within thirty days of receiving written notice of the entry of the order from which the appeal is taken.
An out-of-state subpoena requires [A.] a payment of USD50 to the County Clerk of Court by check or money order; [B.] the Cover Sheet for Civil Actions, completed as per the original subpoena was issued by the state of filing; and [C.] a complete listing of the parties and their attorneys or pro se participants. All names, addresses, and phone numbers must be included on the list to fulfill the UIDDA and South Carolina rules.
A foreign subpoena must be submitted to the clerk of court in the county where discovery is to be performed in this State in order to obtain a subpoena. It is important to note that filing a request for a subpoena to be issued under this law does not constitute a court appearance in this State.
A clerk of court, as per the UIDDA and South Carolina, must, in accordance with the rules of court, quickly issue a subpoena for service upon the person to whom a foreign subpoena is addressed when a party presents such a subpoena to the clerk. All counsel of record in the action to which the subpoena pertains and any party not represented by counsel must have their names, addresses, and telephone numbers included in or attached to the subpoena, and the subpoena must include the phrases used in the foreign subpoena.
ISSUING A FOREIGN SUBPOENA AS PER THE UIDDA
A foreign subpoena must be submitted to the clerk of court in the county where discovery is to be performed in order to obtain a subpoena under the UIDDA and South Carolina. It is important to note that filing a request for a subpoena to be issued under the UIDDA and South Carolina does not constitute a court appearance in this State.
A clerk of court fulfilling the UIDDA and South Carolina requirements must, in accordance with the rules of court, quickly issue a subpoena for service upon the person to whom a foreign subpoena is addressed when a party presents such a subpoena to the clerk. All counsel of record in the action to which the subpoena pertains and any party not represented by counsel must have their names, addresses, and telephone numbers included in or attached to the subpoena, and the subpoena must include the phrases used in the foreign subpoena.
The time, place, and manner of taking a deposition, producing designated books, documents, records, electronically stored information, or tangible items, or permitting inspection of premises pursuant to a subpoena issued shall be in accordance with the UIDDA and South Carolina Rules of Civil Procedure relating to discovery. The court in the county where discovery is to be performed must be petitioned to grant a protective order or to enforce, quash, or alter a subpoena issued by a clerk in accordance with the UIDDA and South Carolina rules or regulations.
The necessity to establish uniformity of the law with regard to its subject matter among the states that pass it must be taken into account in implementing and construing this uniform act. When a party submits a foreign subpoena to a clerk of court as per the UIDDA and South Carolina, the clerk, in accordance with the rules of court, promptly shall issue a subpoena for service upon the person to which the foreign subpoena is directed. The subpoena must incorporate the terms used in the foreign 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.
FOR ASSISTANCE DOMESTICATING AND SERVING A SUBPOENA IN SOUTH CAROLINA
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1. SCRCP Rule 45 (subpoenas generally).
- Conforming to Rule 4 of the Standard Code of Criminal Procedure (service of subpoenas is treated like service of a summons).
- Article 28(d) of the SCRCP (subpoenas for out-of-state actions).
- SCRCP Rule 30 (deposition subpoenas).
- Legal Requirement 40(i) of the SCRCP (rule governing interplay between motions for a continuance and subpoenas).
- Rule 81 of the SCRCP (where not in conflict with the regulations of the Magistrate's, Probate, and Family Courts, the SCRCP applies to those courts).
2. S.C. Code Ann. 15-47-100 to 15-47-160
3. Subpoenas are governed by local court laws, which may include but are not limited to the following:
Procedure Rule 22 of the South Carolina Administrative Law Court (subpoenas in the Administrative Law Court).
Subpoenas in Magistrate's Court are governed under South Carolina Rules of Procedure 6(f), 13(e), and 23.
4. S.C. Code Ann. 15-47-120; Rule 28(d), SCRCP
5. Law. 41, 42 (Nov. 2007) allows the party issuing the subpoena to include an exhibit with the subpoena that lists the exact documents that the party needs to see.
6. Rule 45(a)(1)(C) SCRCP; 19-NOV S.C.
7. A Subpoena Duces Tecum (Form SCCA 208) is used in arbitration proceedings.
Subpoena to Appear in a Civil Action (Form SCCA 254).
Subpoena for Use in a Civil Action (Form SCCA 254F) (Family Court).
Subpoena of Witness (Magistrate's Court) — Form SCCA 708.
The Appendix of Forms to the South Carolina Rules of Civil Procedure also includes Form SCCA 254.
8. Rule 45(b)(2) of the South Carolina Rules of Civil Procedure
9. Rule 4(d) or 4(j), SCRCP) (Rule 45(b)(1), SCRCP
10. Rule 45(c)(3)(A)(i), SCRCP
11. At least ten days prior to the return date, written notice must be issued to all parties in South Carolina when serving a document subpoena (Rule 45(a)(4), SCRCP).
12. Uniform Interstate Depositions and Discovery Act (UIDDA) sections 15-47-100 through 15-47-160 have been incorporated into South Carolina law.
13. sections 15-47-120 and 15-47-130 of the current version of the South Carolina Code
14. Submission of a Motion of Contempt
If a witness in South Carolina refuses to appear for deposition or trial after receiving a subpoena, the party that issued the subpoena may seek contempt sanctions. In the absence of a valid justification, disobeying a subpoena might amount to a criminal offense. As to SCRCP Rule 45(e),
15. Ex parte Wilson, 625 S.E.2d 205, 208 (S.C. 2005)). Ex parte Whetstone, 347 S.E.2d 881, 881-82 (S.C. 1986
16. Barnette v. Adams Bros. Logging, Inc., 586 S.E.2d 572, 575 (S.C. 2003) establishes an abuse of discretion test for reviewing a trial court's decision to impose contempt in discovery cases.
17. A foreign subpoena must be filed in the conventional "paper" fashion, even if the pro se litigant or counsel is a member of the South Carolina Bar. E-filing a foreign subpoena does not need the help of a member of the South Carolina Bar. Section 15-47-120 of the South Carolina Code states that a request for the issue of a foreign subpoena does not constitute attendance in the courts of this State. A member of the South Carolina Bar must submit international subpoenas electronically in E-filing counties.
18. "Clerk of the court" means the county clerk chosen in accordance with Section 14-17-10, who serves as clerk of the court of general sessions, the family court, and any other courts of record in the county, unless otherwise specified by law.