The Uniform Foreign Depositions Act

This article will provide guidance on the Uniform Foreign Depositions Act.  The UIDDA differs strongly from the UFDA, where the attorney needs to seek a deposition (regardless of whether they have the documents) to obtain an order that authorizes the deposition from the court. A UFDA deposition is sought from the court where the action is pending and requires the attorney to take said order to the receiving attorney or clerk in the foreign state. This receiving attorney or clerk is then required to issue the subpoena in the proper form here. 

The UIDDA instead merely allows the in-state subpoena to be directed to the outstate witness as per the appropriate foreign court clerk, allowing for the issue of a replica subpoena in proper form for that state.  The UFDA, however, is currently not prevalent in its usage, although six states still incorporate it. 

Background

An out-of-state attorney seeking discovery in different states must first procure a subpoena in the trial court state and then submit it to the clerk of court in the county where discovery is sought. This often does not comprise a formal court appearance. The clerk then issues a state subpoena, which must [A.] include the terms used in the foreign subpoena; [B.] include or be accompanied by the contact information of all counsel of record and of any party not represented by counsel, and [C.] served in accordance with state laws and rules.

A Florida court applies Florida law to resolve any disputes regarding subpoenas. For instance, if a New York attorney requests discovery from a Florida resident for privileged information under Florida law, the Florida resident may contest the subpoena in Florida court, and Florida law will apply. Any court application for a protective order or to enforce, rescind, or modify a subpoena must comply with Florida laws and rules and be filed with the Florida court where discovery is sought.

Frequently, commissions or letters rogatory are required to obtain testimony from witnesses located outside the state. The majority of states have enacted mutual assistance statutes that make commissions to collect evidence in other states effective. The Uniform Foreign Depositions Act states that witnesses desired under writs or commissions from courts of any other state or foreign country ‘may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in pending proceedings in this state. ‘ A further illustration is the statutory recognition of subpoena-issuing authority in a ‘resident commissioner,’ who is thus able to enforce the subpoenas the commission sent them. Prior to the passage of the UFDA, it was common for the courts of one state to send letters rogatory to the courts of a neighboring state. When a witness is in a foreign country and refuses to appear before a commissioner voluntarily, letters rogatory must still be issued, just as in the case of federal courts. Due to their lack of treaty-making authority, the states must await federal action to facilitate the process of obtaining evidence in foreign countries, just as it has been facilitated between states. Letters rogatory are considered the most suitable means of sending a request for assistance via diplomatic channels. While letters rogatory have historically been used in this nation largely for the purpose of acquiring testimony evidence from other jurisdictions, they are often utilized as the standard technique for effecting extranational service in many nations. 

In order to facilitate the procedure for foreign nations executing depositions within the United States, it would have been advantageous for the states to adopt the Uniform Foreign Depositions Act unanimously. Certainly, foreign nations experience considerable delay and perplexity in executing depositions in the United States due to the federal court’s restriction on the execution of letters rogatory and our distinct federal-state judicial system. 

Where does the UFDA stand under federal regulations?

The  Federal Rules typically aim to facilitate the practice of taking foreign depositions by mandating that they be taken ‘on notice’ before designated consular or diplomatic officials or by commission or letters rogatory, but only when ‘necessary and convenient.’  Depositions on notice, as provided for in the Rules, generally correspond to statutory de bene esse depositions in that both may be taken as of right on notice to the opposing party and may be used only in the absence of the deponent due to specified contingencies, such as death, absence from the country, infirmity, or sickness. Nonetheless, there are several important distinctions. Whereas, as indicated, deposition on notice is the primary procedure permitted by the Rules in such situations. 

The Uniform Foreign Depositions Act stipulates that an out-of-state witness may be compelled to appear and testify in the same manner and by the same process that may be used for taking testimony in the state.  In order to request the issuance of a subpoena pursuant to this, a party must submit a foreign subpoena to the court registrar in the county where discovery is to be conducted.

In most implementing states, when a party submits a foreign subpoena to the clerk of a court in this state, the clerk promptly issues a subpoena for service upon the person to whom the foreign subpoena is directed, in accordance with the court’s procedure A subpoena thus issued must [A.]  include the terms used in the foreign subpoena; and[B.]  include 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.

What practices did the UFDA attempt?

The UFDA attempted to provide the same method for foreign depositions as for domestic depositions, combined with the fact that depositions on notice are the method most commonly used by state courts, demonstrating a valiant effort to bring order to the American depositions practice. A subpoena, which may be used in the United States, is ineffective in a foreign country, even against a U.S. citizen residing there. The same holds true for the overseas execution of commissions.

This obstacle of national sovereignty to the effective use of a subpoena demotes the deposition by commission from its pre-rules dominance in the foreign field to a secondary position. Even under the statutes, it would not be issued when circumstances existed for a de bene esse deposition, except in exceptional cases (except the foreign field) that qualified as ‘necessary in order to prevent a failure or delay of justice.’ 

Since the issuance of letters rogatory has been viewed as an inherent privilege of the courts and their execution as a matter of comity, statutes have only marginally entered the field. However, the execution of letters rogatory issued by foreign courts to federal courts is somewhat constrained by statute.  Federal courts are also authorized to issue subpoenas through American consuls to obstinate American citizens whose depositions are sought abroad under letters rogatory and to sanction such witnesses for contempt of court if the subpoena is disregarded. A state cannot exercise executive jurisdiction beyond its territorial boundaries. However, this acknowledges that a commission may operate outside of state boundaries and that an officer using such a commission may administer oaths and take testimony.

The Uniform Foreign Depositions Act expressly authorizes officers acting under a commission to compel attendance and extends this authority to foreign commissions or writs. It is comprehensive enough to permit the recognition of letters rogatory or commissions issued in a different jurisdiction. Before an application may be submitted, it is unclear whether the Act requires that an action, as opposed to a special proceeding, be pending in another jurisdiction. However, it may be possible to argue that the Act is implemented by other statutory procedures within the state.

In Christ v. Superior Court, letters rogatory were issued by a Guatemalan court; the petitioner was allegedly about to file a lawsuit in that court. In California, the state of the petitioned court, the deposition procedure permitted opening the procedure at any time after service in an action or when a factual issue was raised in a special proceeding.  In addition to the Uniform Foreign Depositions Act, California had a statute allowing a party to an action or special proceeding in a court of a sister state to obtain testimony in California for use in the action or proceeding. In ordering the recognition and execution of the letters, the court presumed that a special proceeding comparable to their statutory perpetuation process was taking place in Guatemala and that such a special proceeding would satisfy both statutes.

By amending the perpetuation statute and enacting the Uniform Foreign Depositions Act, the states could establish an accommodating and flexible procedure for taking depositions. The Act could include cross-examination of opposing parties, discovery, and perpetuation, with or without a presumption.

Practical Factors in the usage of the UFDA

Consular officials are required by law to take depositions and perform any notarial act that a notary public in the United States is required or authorized to perform. In addition, they are instructed to take testimony on notice or commission in accordance with the statutes of the jurisdiction where the deposition will be used and to adhere to any special instructions that accompany the request or commission.

In every state, statutes establishing and regulating depositions practise have been enacted. They are comparable to the discussed federal statutes in that they specify the conditions governing the taking and use of depositions and name the officials authorized to conduct the examination. In a number of states, the taking of depositions is a matter of absolute right, as per the Rules, but in most cases, even though depositions may be taken on notice alone, certain specified grounds must exist.

Commissions or letters rogatory are frequently required to obtain evidence from witnesses outside the state. The majority of states have enacted mutual assistance laws that render effective commissions to secure evidence in other states. The UFDA was enacted by eleven states and stipulated that witnesses desired under writs or commissions from courts of any other state or foreign country ‘may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in pending proceedings in this state.’ Prior to the passage of these laws, it was common for the courts of one state to send letters rogatory to the courts of a neighboring state.  As in the case of federal courts, letters rogatory must still be issued when the desired witness is located in a foreign country and refuses to appear before a commissioner voluntarily. In the absence of treaty-making authority, the states must await action by the federal government to facilitate the process of securing evidence in foreign countries, as it has been among the states.

Current Scenario

A litigant frequently needs to obtain discovery from an out-of-state witness. Federal Rule of Civil Procedure (FRCP) 45 regulates the nationwide procedure for issuing and serving a subpoena on an out-of-state witness in federal court. However, compared to federal court, state court is a lot more difficult to decipher. Frequently, the first stage is the most difficult: determining which law applies. Attorneys are conversant with their state’s subpoena procedure for non-parties. However, attorneys rarely devote a substantial amount of effort to researching a foreign state’s procedure for recognizing and enforcing the subpoena.

The first stage is to recognize that only one of three procedures may apply: the Uniform Interstate Discovery and Depositions Act (the UIDDA), the Uniform Foreign Depositions Act (the UFDA), or a non-uniform state procedure. In general, the procedure under each of these alternatives is straightforward. Under the UIDDA, a lawyer must present a subpoena for an out-of-state witness to the appropriate court clerk in the state where the witness resides. The registrar then issues an identical subpoena using the state-specific format. Under the UFDA, an attorney must request a deposition (with or without documents) and procure an order from the court where the action is pending authorising the deposition. The attorney then delivers the order to an attorney or clerk in the foreign state so that the subpoena can be issued in the appropriate format for that state. In the few states with a non-uniform procedure, the options range from merely presenting a clerk with a notice of deposition to initiating an unrelated action and obtaining a court order. Regardless of the procedure, its governing principles are relatively straightforward.

The subpoena must be served in accordance with the foreign state’s rules and procedures for service of process. Although this may sound intimidating, sheriff or process server delivery is almost always sufficient. Finally, attorneys must account for state-specific variations. 

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Sources

1. Uniform Foreign Depositions Act has been superseded in some states by the Uniform Interstate Depositions and Discovery Act.

  1. Florida: Fla. Stat. § 92.251
  2. Georgia: Ga. Code § 24-10-110 et seq.
  3. Louisiana: La. Rev. Stat. § 13:3821 et seq. … t.
  4. Maryland: Md. Code, Cts. & Jud. Proc. art., § 9-401 et seq.
  5. New Hampshire: N.H. Rev. Stat. § 517-A:1 et seq.
  6. Ohio: Ohio Rev. Code § 2319.09 et seq. … 

2. The bill defines ‘subpoena’ as any document issued by a court of record that requires a person to: Attend and testify at a deposition; Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the person’s possession, custody, or control; or Permit inspection of premises under the person’s control.

3. Whenever any mandate, writ or commission is issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.’ Uniform Foreign Depositions Act § 1; 9 Uniform Laws ANN. 323 (1942).

4. It should be noted that the absence of a service-by-letters-rogatory provision does not automatically prevent a state court from utilizing the letter’s rogatory mechanism. Several states have granted their courts the authority to impose alternative means of service where it is shown that conventional service methods are not feasible. In the absence of a comprehensive provision of this nature, a state court has the authority to utilize its inherent power to undertake any reasonable measures required for the efficient administration of justice. 

5. The Federal Rules of Civil Procedure have been amended to include rule 4(i) (1) (B), which grants federal courts the explicit power to attempt service in a foreign country through the use of letters rogatory. A similar provision can be found in section 2.01(a) (4) of the Uniform Interstate and International Procedure Act.

6. First, de bene esse depositions could not be taken or used in the absence of the prescribed conditions, whereas depositions on notice may be taken without any conditions other than notice to the opposing party; however, certain grounds must be demonstrated to allow their use.

Second, de bene esse depositions were inapplicable in foreign nations.

7. Rule 26 (a) provides that ‘depositions shall be taken only in accordance with these rules,’ and the Rules make no mention of any other manner of taking depositions (except by commission or letters rogatory in foreign countries)it is evident that the only way depositions may be taken is in accordance with these rules.

8. Under the Rules, commissions may only be issued for foreign depositions when ‘necessary and convenient’ and on terms that are ‘just and appropriate.’

9. 28 U.S. Code § 1783 – Subpoena of person in foreign country

10. Rule 37 (e) incorporates the statute governing the issuance of subpoenas into the Rules.

11. RESTATEMENT OF CONFLICT OF LAWS §§ 378-380, 383, 385 (1934) 

12. By referencing the phrase ‘…. or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in this state….,’ it can be argued that application for authorization need not be made to the trial jurisdiction but that parties on agreement may initiate by applying to authorized officers granted power under the laws of the state where application is made.

13. Christ v. Superior Court, 211 Cal. 593

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