HOW TO SUBPOENA AN OUT-OF-STATE WITNESS TO TESTIFY IN A TRIAL

This article will provide guidance on How to subpoena an out of state witness to testify in a trial.  Legal matters sometimes extend beyond the boundaries of individual states. This necessitates the establishment of a consistent and predictable body of laws that applies uniformly throughout states. ‘Uniform acts’ refer to model laws that are collectively drafted with the aim of facilitating the adoption of the same or comparable legislation across different states. These statutes may be differentiated from interstate compacts.

The Uniform Law Commission created the Uniform Interstate Depositions and Discovery Act (UIDDA) to simplify the process of conducting out-of-state discovery for state court cases. The UIDDA, established in 2007, has been widely adopted by most states. It offers a standardized method for litigants to conduct depositions and gather information from individuals and entities located outside their state. The UIDDA aligns the out-of-state subpoena process for state court cases with Federal Rule of Civil Procedure 45.

To obtain out-of-state discovery in a state court proceeding, a litigant must first obtain a subpoena from the court where the case is being held. The litigant should submit the subpoena to the county clerk where the discovery is being requested. The clerk will quickly issue a local subpoena to serve the person or entity being requested for discovery. The subpoena must comply with state rules and statutes regarding discovery. However, with the sheer volume of applicable state requirements, the assistance of a private process service company like Undisputed Legal can be of help. Our team of process servers have extensive knowledge of legal requirements in various countries and can ensure compliance, reducing the likelihood of errors or complications.

History and Background of the Uniform Act

Typically, the subpoena power of a state court terminates at the state’s frontier. Consequently, a state court would lack the authority to subpoena a witness residing in another state without prior permission. Therefore, state prosecutors cannot use the same procedures to obtain a subpoena for an out-of-state witness as they would for a witness residing within the state. 

In the United States, a uniform act refers to a legislative proposal at the state level formulated and endorsed by the Uniform Law Commission (ULC), alternatively recognized as the National Conference of Commissioners on Uniform State Laws (NCCUSL). The National Conference of Commissioners on Uniform State Laws (NCCUSL) comprises a collective of legal professionals, including private and government attorneys, state and federal judges, and law professors. State governors often designate these individuals to serve in this capacity. Although the NCCUSL has considerable influence, it lacks inherent legislative authority. The adoption of standard acts as laws only depends on their enactment by state legislatures.

1931 the National Conference of Commissioners on Uniform State Laws presented the Uniform Act. The purpose of the act was to facilitate the application of criminal law and the administration of justice in criminal proceedings. The Conference of Commissioners made two amendments to the Uniform Act in 1936. The initial modification permitted prosecutors to utilize the act during grand jury proceedings. The second modification permitted the arrest, detention, and delivery of a witness to an officer of the requesting state when ‘convenient.’ In New York v. O’Neill, decided in 1959, the Supreme Court upheld the constitutionality of the Uniform Act.

Procedure for Implementing the Uniform Act

Under the Uniform Act for criminal subpoenas, obtaining a (criminal) subpoena is a five-step procedure.  Legal and practical issues that prosecutors should be aware of when using the Uniform Act include [A.] prior requests to be made; [B.] timely requests; [C.] the burden of proof and sufficiency of showing; [D.]how and where to address a witness’s claim to have a legal privilege not to testify; [E.]the trial court’s broad discretion to issue or decline to issue a summons; and [F.] the need to attempt to use the Uniform Act for a witness to be considered ‘unavailable.’ 

In a proceeding under the Uniform Act, the party requesting the certificate or subpoena bears the burden of proof. While the prosecutor should comply with all requirements, it is important to be able to demonstrate that a witness is relevant or relevant and necessary, depending on what is required at that stage of the process.  The vast majority of states have adopted the 1936 amendments to the Uniform Act, which expressly allow grand jury proceedings to subpoena witnesses.  Several of these states instead specify that the Act may be utilized ‘during a criminal prosecution.’ 

At Undisputed Legal, Subpoena Services is a special division within our process service department, which exclusively deals with the service process of Subpoena Duces Tecum, Subpoena Ad Testificandum, and Information Subpoenas. Due to the complexities (i.e., Civil Practice laws and rules) related to the service, the process of subpoenas was necessary for this expansion which has allowed us to ensure the accuracy and efficiency of every service.

The role of the UIDDA

The Uniform Foreign Deposition Act (UFDA) was formulated by the Uniform Law Commission (ULC) in 1962 with the intention of offering a more extensive approach to addressing the matter at hand. However, it did not gain widespread acceptance among the states, leading the ULC to retract its support of the UFDA in 1977. The UFDA differs significantly from other legal frameworks primarily due to its enhanced emphasis on the trial court and the discovery court’s role in defining the discovery method. 

The Uniform Interstate Depositions and Discovery Act (UIDDA) is a legal framework that facilitates the process of obtaining depositions and conducting discovery across state lines. The Uniform Interstate Depositions and Discovery Act (UIDDA), formulated in 2007, has been implemented, in varying capacities, by twenty-nine states, the U.S. Virgin Islands, and the District of Columbia. The primary objective of UIDDA was to establish a streamlined procedure for conducting depositions and discovery across state lines, with minimal judicial oversight and intervention, in order to reduce costs for deponents. In order to get the necessary information, it is required to submit a subpoena to the clerk of court in the relevant jurisdiction. This subpoena should be granted by the trial court. Subsequently, the clerk is responsible for issuing a subpoena to the witness under the authority of the discovery court, which will then be served upon the witness. In order to initiate a miscellaneous procedure, it is possible to seek a subpoena without being treated as formally appearing in the courts of the discovery state. This is where qualified private process service companies like Undisputed Legal come in. At Undisputed Legal Inc., we employ hundreds of professional process servers domestically and abroad, allowing us to provide all our clients with local professional process servers.

In the context of the Uniform Interstate Depositions and Discovery Act (UIDDA), local judicial intervention is considered when there is a disagreement on the enforcement of a subpoena. In such instances, any request for a protective order or to enforce the subpoena must be submitted to the appropriate local court. The availability of the Uniform Interstate Depositions and Discovery Act (UIDDA) to out-of-state litigants varies across states. For instance, states like Alabama, Georgia, and Utah have reciprocity requirements that restrict litigants from states like Ohio, which have not embraced the UIDDA procedures. The complexity of subpoena procedures across the country is why the services of a private process service company, Undisputed Legal Inc., can be invaluable. We specialize in processing out-of-state subpoenas but also conduct witness fee calculations. We understand the concerns arising from interstate service and provide services for advancing witness fees and so-order subpoenas. Please click here to watch the video on domesticating a foreign subpoena

 What about civil subpoenas?

The issuance of third-party subpoenas is a customary aspect of a litigator’s professional practice. Obtaining documents from a third party residing in the same state where the legal action was initiated is generally easy. However, acquiring records from an out-of-state records custodian might present additional complexities.

The procedure of issuing subpoenas for information from another state has been expedited by recent modifications to Rule 45 of the Federal Rules of Civil Procedure. Under the previous regulation, it was mandatory for a lawyer to obtain a subpoena from the court in which the records custodian would adhere to the subpoena, irrespective of the jurisdiction of the underlying legal proceedings.  In general, it is not obligatory for an individual residing in one state to attend a deposition in another state or provide documents in accordance with a records subpoena issued in a different state. In order to obtain a subpoena from a specific jurisdiction, a petitioner is required to seek the aid of a state court in that jurisdiction. Every state has its own distinct protocol for issuing a subpoena in a case involving parties from other states.

The litigant has the ability to conduct a deposition of a company by issuing a subpoena that has been issued by the court in which the corporation is legally established. The domicile of a company may be either the state where its major offices are situated or the state where it was first established as a corporate body, provided that this state differs from the location of its headquarters. In cases when a company is domiciled in two jurisdictions, it is important to note that a subpoena issued in either of these states will have the legal effect of binding the corporation.

According to the regulations, when a party presents a foreign subpoena to the clerk, the clerk is required to swiftly issue a subpoena for the purpose of serving the individual to whom the foreign subpoena is addressed. The three key processes in legal proceedings are deposition, production, and inspection. The regulations pertaining to adherence with subpoenas for the purpose of attending and providing testimony, producing specified books, papers, records, electronically stored information, or physical objects, or allowing examination of premises are also relevant to subpoenas issued. 

Within the states: What’s the procedure?

In order to request a protective order or seek enforcement, quashing, or modification of a subpoena issued by a clerk, it is necessary to adhere to the regulations and legal requirements of the state. The motion must be formally presented to the appropriate court. For example, the Superior Court has the authority to order the service of any document related to a proceeding in a tribunal outside the District of Columbia on any person who is either domiciled or can be located within the District of Columbia. This can be done upon application by an interested individual or in response to letters rogatory issued by a tribunal outside the District of Columbia. The directive must specify the method of service.

Possessing a legally binding subpoena is essential to get the necessary information unless the third person involved is willing to comply. In the context of federal court, the process is generally straightforward. However, despite the efforts of the Uniform Law Commission to establish a standardized method, the issuance of out-of-state subpoenas for discovery continues to exhibit variations in terms of both procedure and clarity. In jurisdictions that have implemented a variation of the Uniform Law Commission’s latest guidelines, it is necessary for the party seeking a subpoena from a state court to approach the clerk of court in the county where the individual providing testimony is situated. Subsequently, the clerk of court is obligated to issue a comparable subpoena for proper service. In jurisdictions where law governs this matter, it is necessary to get a commission from the presiding judge and afterward submit it to the relevant court within the state where the discovery is being sought in order to secure the issuance of a subpoena. It should be noted that herein, a private process server like those at Undisputed Legal offers professionalism and impartiality. Our expertise can facilitate the resolution of any misunderstandings or disputes that may occur when serving foreign subpoenas, enhancing the efficiency of the legal process.

 In some jurisdictions, it is permissible for a subpoena to be issued by a local attorney without the need for court involvement. Alternatively, in other cases, a subpoena may be issued if sufficient evidence is provided to demonstrate that a proper notice of deposition has been served in the first legal proceeding. In situations when it becomes evident that it is necessary to acquire discovery from a witness located outside the state, in relation to a state court that has legal authority over such individual or corporation. 

As always, it is advisable to examine the laws and procedural regulations of the state pertaining to obtaining information to support litigation being conducted outside of the state. Subsequently, it is recommended to seek help from the clerk of court in the relevant jurisdiction. At Undisputed Legal, we make it a point to keep ourselves accountable to our clients. We ensure that we cover all important bases, and we guarantee that you never have to worry about the compliance required for your documents.  

What do the federal rules state?

According to the existing federal regulation, it is permissible to issue a subpoena from the district court where the legal proceeding is ongoing and serve it anywhere within the United States. Nevertheless, there are restrictions on the geographical locations where the discovery process can be conducted. In the event that enforcement of the subpoena is necessary or if the recipient intends to challenge its validity, it will be required to be addressed in the district court with jurisdiction over the witness involved.

According to Rule 45 of the Federal Rules of Civil Procedure, as of December 1st, 2013, individuals are allowed to serve a subpoena issued from the district court where their legal case is currently being heard, regardless of the geographical location inside the United States. The issuance of the subpoena is mandated to originate from the district court where the sought discovery is to take place, and it also imposes certain geographical restrictions on the delivery of the subpoena. Simultaneously, the new regulation emphasizes the importance of adhering to the requirements for compliance. The recipient of an individual subpoena is obligated to attend a deposition or provide documents within a hundred-mile radius of their residence, place of employment, or regular business transactions conducted in person. Furthermore, motions to quash or enforce a subpoena are typically filed in the district court where compliance is necessary rather than the court that issued the subpoena. However, in some situations, these moves may be shifted to the issuing court if the receiver of the subpoena consents or if there are extraordinary circumstances.

At Undisputed Legal, we always try to be there for our clients. We understand that a foreign subpoena can lead to stress and worry. So, we ensure that you are always kept in the loop as to the status of your documents. To this end, we even offer personalized ‘Real-Time’ email status updates so you know exactly where your papers are. Hiring an experienced private process service company like Undisputed Legal can help ensure the successful service of subpoenas in foreign jurisdictions. Our process servers possess expertise in local laws, language skills, and procedural knowledge, enhancing the legal process’s effectiveness and efficiency.

OUR PROCESS

Documents can be faxed at (800) 296-0115, emailed to ps@undisputedlegal.com, mailed, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist will receive all documents.  Click Here for Frequently Asked Questions About Process Servers!

DOMESTIC COVERAGE AREAS:

Alaska | Alabama | Arkansas | Arizona | California | Colorado | Connecticut | District of Columbia | Delaware | Florida | Georgia | Hawaii | Iowa | Idaho | Illinois | Indiana | Kansas | Kentucky | Louisiana | Maryland | Massachusetts | Maine | Michigan | Minnesota | Mississippi | Missouri | Montana | North Carolina | North Dakota| Nebraska | New Hampshire | New Jersey | New Mexico | Nevada | New York | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Virginia | Vermont | Washington | West Virginia | Wisconsin | Wyoming

INTERNATIONAL COVERAGE AREAS:

Albania | Andorra | Anguilla | Antigua | Argentina | Armenia | Australia | Austria | Azerbaijan | Bahamas| Barbados | Belarus | Belgium | Belize | Bermuda | Bosnia and Herzegovina | Botswana | Brazil | British Honduras| British Virgin Islands | Bulgaria | Canada | Cayman Islands | Central and Southern Line Islands| Chile|China (Macao) | China People’s Republic | Colombia | Costa Rica | Country of Georgia | Croatia | Cyprus| Czech Republic| Denmark | Dominican Republic | Ecuador | Egypt | Estonia | Falkland Islands and Dependences | Fiji | Finland | France | Germany | Gibraltar | Gilbert and Ellice Islands | Greece | Guernsey | Hong Kong | Hungary | Iceland | India | Ireland | Isle of Man | Israel | Italy | Jamaica | Japan |Jersey Channel Islands | Jordan | Kazakhstan | Korea| Kuwait | Latvia | Lithuania | Luxembourg | Malawi| Malaysia | Malta | Mauritius | Mexico| MonacoMontenegro | Montserrat | Morocco | Namibia | Netherlands | New Zealand|Nicaragua | Norway | Pakistan | Panama | Paraguay | Peru | Philippines | Pitcairn |Poland | Portugal | Republic of Moldova | Republic of North Macedonia | Romania |Russian Federation | Saint Vincent and the Grenadines | San Marino | Saudi Arabia | Serbia| Seychelles | Singapore| Slovakia | Slovenia | South Africa | Spain | Sri Lanka | St. Helena and Dependencies | St. Lucia| Sweden | Switzerland | Taiwan | Thailand | Tunisia | Turkey | Turks and Caicos Islands| UkraineUnited Kingdom of Great Britain and Northern Ireland | Uruguay | US Virgin Islands | Uzbekistan | Venezuela | Vietnam

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 – 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 – 1101 Pennsylvania Avenue, Suite 300, Washington DC 20004

FOR ASSISTANCE DOMESTICATING AND SERVING A SUBPOENA

Pick up the phone and call (800) 774-6922, or click the service you want to purchase.  Our dedicated team of professionals is ready to assist you. We can handle all your subpoena service needs; no job is too small or too large!

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

“Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives.”– Foster, William A

Source

1. New York v. O’Neill, 359 U.S. 1, 9-12 (1959). 

2. Idaho, North Dakota, and Wyoming, among others, have not adopted the 1936 amendments.

3. Compare In re Vioxx Products Liability Litigation, 438 F. Supp.2d 664 (E.D. La. 2006) (finding authority to compel a party officer from New Jersey to testify at trial in New Orleans),

4. As an example, the District of Columbia Code, specifically §§ 13-441 to -448, pertains to the regulations and procedures governing interstate depositions and discovery processes as outlined in the Uniform Interstate Depositions and Discovery Act.

5. A subpoena issued in accordance with Rule 28-I(b)(1)(B) is required to [A.] include the exact wording used in the foreign subpoena;  and [B.] include or be accompanied by the names, addresses, and telephone numbers of all legal representatives involved in the relevant legal proceeding, as well as any party who is not represented by legal counsel.

6. The act of serving under Rule 28-I(c) does not inherently necessitate the acknowledgment or implementation of an order, judgement, or decree issued beyond the jurisdiction of the District of Columbia.

7. 28 U.S. Code § 1783 – Subpoena of person in foreign country

 Not (a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.

(b) The subpoena shall designate the time and place for the appearance or for the production of the document or other thing. Service of the subpoena and any order to show cause, rule, judgment, or decree authorized by this section or by section 1784 of this title shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.

BLOG DISCLAIMER

The information contained herein has been prepared in compliance with Section 107 of the Copyright Act. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works. The articles/Images contained herein serve as criticism, comment, news reporting, teaching, educational, and research-as examples of activities that qualify as fair use. Undisputed Legal Inc. is a Process Service Agency and “Not A Law Firm” therefore the articles/images contained herein are for educational purposes only, and not intended as legal advice.