HOW TO DOMESTICATE A FOREIGN SUBPOENA IN Connecticut

This article will provide guidance on How To Domesticate a Foreign Subpoena in Connecticut.  A foreign subpoena refers to an order of a court of a foreign jurisdiction issued in a civil or probate proceeding. A subpoena is a document, however, denominated, issued under the authority of a court of record requiring a person to [A.] attend and give testimony at a deposition; [B] produce and permit inspection and copying of designated documents. 

Uniform Interstate Depositions and Discovery Act (UIDDA)-Connecticut

A party requesting a subpoena must submit to a clerk of the Superior Court or a clerk of the Probate Court in the district where discovery is sought to be conducted in this state, as the case may be.  The Office of the Chief Court Administrator and the Probate Court Administrator is responsible for determining the Connecticut UIDDA Service form that must be presented for any action in the Superior Court or the Probate Court.

In the event that a party files a foreign subpoena with the clerk of the Superior Court or the Probate Court, the clerk of the appropriate court should quickly issue a subpoena for Connecticut UIDDA Service upon the person to whom the foreign subpoena is addressed. The Connecticut subpoena must include the terms used in the foreign subpoena and either includes or is accompanied by an affidavit of the party stating the names, addresses, and telephone numbers of all counsel in the record in the proceeding to which the subpoena pertains and further has the case caption and docket number of the issue.

REQUIREMENTS OF A FOREIGN SUBPOENA

A subpoena issued by an assistant chief court administrator must be on a form established by that office. A clerk of the Probate Court is required to issue a subpoena on a form provided by the Office of the Probate Court Administrator. If a lawsuit is current or has been filed on or after July 1, 2023, a Connecticut UIDDA Service request for discovery may be made. Suppose a person seeks a protective order related to a matter or a subpoena issued by a clerk under section 46. In that case, they must comply with the general Connecticut UIDDA Service statutes and the rules of Connecticut courts. The application should be made to the Superior Court in a judicial district or the Probate District Probate Court where disbursements are made. It is required that a judge or clerk from any state court, notary public, or Superior Court commissioner take the depositions inside this state.

If a deposition is to be taken in any other state or country, Connecticut UIDDA Service must be taken before the notary public. The deposition can also be conducted before the Governor's Commissioner or any magistrate having the power to administer oaths. Anyone thus commissioned has the authority to administer any relevant oaths and take evidence as a result of their commission. 

For civil cases in the Superior Court, the clerks are entitled to USD 250 for filing each appeal or writ of error and USD 360 for filing each appeal with the Appellate 1617 Court. However, the clerks are not entitled to receive USD218 for filing each civil case in the Superior Court, wherein the sole claim for relief is damages and the amount. 

SPECIFIC DOCUMENTATION REQUIRED FOR A FOREIGN SUBPOENA

Documentation must be submitted to the clerk to comply with the subpoena, which would include [A.] the application for subpoena; [B.] appearance by Connecticut counsel or by a self-represented party; [C.] a certified copy of the foreign order; [D.]  the proposed order; and [E.] the entry fee of USD360. The application may be accompanied by a completed subpoena form (without signatures. The Connecticut General Statutes gives the Superior Court authority to dismiss, alter, or compel compliance with a subpoena issued for the purpose of obtaining a deposition.

It is important to note that a person not involved in the legal proceedings who gets an interstate subpoena may oppose it in writing if it would cost him or her an excessive or unreasonable hardship or expense. The person who issued the subpoena must be served with an objection no later than fifteen days after receiving the Connecticut UIDDA Service of the subpoena, whichever is sooner. The subpoena issuer cannot compel compliance with the subpoena until an order of the Superior Court is issued. Suppose a healthcare practitioner or healthcare facility is accused of professional misconduct. In that case, the requirements do not apply to any civil action to seek damages for bodily injury or wrongful death. 

REQUIREMENTS FOR INTERSTATE DEPOSITION IN CONNECTICUT

 Non-resident plaintiffs in an action who are not residents of the county where the case has been filed or is currently being litigated may be required to give a deposition in that county. A subpoena is not required for a deposition to be taken on notice. A non-resident defendant, on the other hand, is not required to travel more than thirty (30) miles from their house or beyond the county in which they reside to be deposed. Owing to this Connecticut UIDDA Service regulation, a non-resident defendant may only be deposed in Connecticut based on [A.] their own will; [B.] when served with a subpoena in Connecticut; or [C.] as ordered by the court. It does not matter whether the defendant was out of state when they started the lawsuit or were out of state while litigated. 

An out-of-state plaintiff may obtain an injunction prohibiting the taking of a deposition in Connecticut. The Connecticut UIDDA Service rules and procedures applicable to non-parties will be used to persuade a party to attend a deposition outside of Connecticut.

At least five different types of Connecticut UIDDA Service laws may apply when issuing processes for out-of-state depositions. Depending on the jurisdiction, subpoenas may be issued in various methods. These may be issued in certain states by an official from a neighboring state, while others by a clerk from that state. Before issuing subpoenas, some jurisdictions need judicial authority, while others require a court request.

An out-of-state witness whose subpoena has been properly served but who fails to appear must bring a motion to compel to their home jurisdiction.  Many states, although not all, require professional certification. Having a deposition certified in Connecticut might jeopardize its acceptance into evidence. Thus, this should be taken into account.

No matter who the commissioner, magistrate, or notary public is, depositions must be taken in this state before being used in any other state or country in a civil action. If the court is not in session, any judge may appoint one of these individuals to serve as a commissioner. 

SO, WHO RECEIVES THE DEPOSITION?

For most depositions outside of Connecticut, a person commissioned by the court is requested for Connecticut UIDDA Service. Submission of motions with specific orders for the appointment of the commission at issue is used for this purpose. The words ‘State of Connecticut’ above the caption is a good idea to clarify whose court made the decision.

Any commissioner of the superior court may summon witnesses. Local legal counsel may issue a subpoena based on an out-of-state court's judgment.’ As a consequence, counsel should seek a certified copy of the order. The attorney needs to petition for a capias to ensure that the witness appears for the deposition. 

OUT-OF-STATE DEPOSITIONS IN CONNECTICUT 

In Lougee v. Grinnell, it was decided that the defendant might contest the legality of the subpoena. As a defense, they claimed that the evidence sought was extraneous and irrelevant. According to the Supreme Court, Connecticut's sole participation in an out-of-state deposition is ‘supervising the deposition.’ Since this was the case, a deposition might go on as scheduled with no decision on its relevance. 

When a Connecticut court failed to consider whether out-of-state deponents were experts and so entitled to pay, it was declared by the Superior Court in Fairbanks that the New York court had the jurisdiction in making that determination. In this perspective, the decision reached after Lougee seems at odds with its spirit, if not its objective.  Despite the difficulty of interviewing an interstate witness, Connecticut UIDDA Service is, thus, not prohibitively time-consuming.

UIDDA Connecticut instructions

OUT OF STATE COMMISSION TO DEPOSE A CONNECTICUT RESIDENT – Revised 07/01/18

To depose a Connecticut resident for use in a foreign court, you may follow either of the two procedures described below. You may also qualify to depose a Connecticut resident for use in a foreign court under Connecticut's Multi-Jurisdictional Practice (MJP) privileges as an attorney who may provide temporary legal services in Connecticut. (See Information about Connecticut's Multi-Jurisdictional Practice (MJP) privileges.)

1. File (deliver to court) a motion for the commission to take a deposition in the court in the jurisdiction where your case is pending.

Note: In this motion for a commission, you may name a Connecticut attorney or notary public to take the deposition in Connecticut. (Most court reporters are notary publics.)

2. You must ensure that the time and notice requirements of Section 52-148a of the Connecticut General Statutes and Section 52-148b of the Connecticut General Statutes are met.

3. After the order for the commission is signed by the foreign court, you may send a certified copy of the order to the Connecticut attorney or notary public, who will schedule the deposition and issue the subpoena.

OR

1. File a motion for the commission to take a deposition in the court where your case is pending.

Note: In the motion for a commission, you may name a Connecticut attorney or notary public to take the deposition in Connecticut. (Most court reporters are notary publics.)

2. Ensure that the time and notice requirements of Section 52-148a of the Connecticut General Statutes and Section 52-148b of the Connecticut General Statutes are met.

3. Apply for a court-ordered subpoena pursuant to Section 52-155 of the Connecticut General Statutes at the Superior Court with appropriate jurisdiction.

The following must be filed with the clerk:

1. Application for issuance of subpoena;

2. An appearance by Connecticut counsel or by a self-represented party;

3. A certified copy of the order from the foreign jurisdiction;

4. Proposed order; and

5. The entry fee is $360.

Note: A completed subpoena form (without signatures) may be filed with the application.

Section 13-28 (g) of the Connecticut Practice Book

Sections 52-148a through 52-148e of the Connecticut General Statutes and Section 52- 155 of the Connecticut General Statutes

The Superior Court has jurisdiction to quash or modify or enforce compliance with a subpoena issued for taking a deposition pursuant to Section 52-148e(f)(1)of the Connecticut General Statutes.                 

Note: Someone who receives a subpoena related to a civil action or probate proceeding in another state or a foreign country and is not a party to that action or proceeding may serve a written objection on the person requesting the subpoena if the subpoena causes such person undue or unreasonable burden or expense. The objection must be served on the person who issued the subpoena, the earlier of 15 days after being served with the subpoena or the date specified for compliance with the subpoena. Once such a written objection has been made, the subpoena issuer may not compel compliance except pursuant to an order of the Superior Court. For more information, see Section 52-148e(f)(2) of the Connecticut General Statutes. The provisions of this section do not apply to a civil action filed to recover damages resulting from personal injury or wrongful death in which it is alleged that such injury or death resulted from the professional malpractice of a health care provider or health care institution. Section 52- 148e(f)(3) of the Connecticut General Statutes.

FOR ASSISTANCE SERVING A SUBPOENA IN Connecticut

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 Sources

1. If a request for discovery is made on or after July 1, 2023, it will be covered by this new rule

2. This act amends section 1535 of the general laws to include a fee for issuing a foreign subpoena or for any action in the Probate Court; section 45a-106a of the general statutes as modified is applicable. It is not necessary to appear in any court in this state if a subpoena is requested under the terms of this section or sections 47 to 49, inclusive, of the act.

3. If a court clerk in this state issues a subpoena under this act, the subpoena must be served per section 52-148e of the general laws.

4. As stated in section 46 of this act, a subpoena issued according to this act shall be governed by sections 52-148a to 52-152, inclusive of the general laws, respectively.

5. Except for a state with laws substantially similar to sections 44 to 49, inclusive, of the Connecticut general statutes.

6. A deposition may also be taken before any foreign minister, secretary of a legation, consul, or vice-consul appointed by the United States or any person by him appointed for the purpose and having authority under the laws of the country where the deposition is to be taken. A certificate issued by the Secretary of State of the United States will prove the official character of any such person.

7. For certification and copying, for a certified copy and a fee of fifteen dollars, inclusive of the fee for copying, for an uncertified copy; for a certified copy of a certificate of judgment in the case of a foreclosure action, as provided by the rules of practice; and a fee of twenty-five dollars for a copy of the judgment file.

8. For civil actions  filed by section 53a-28a, there will be no entrance price; and for petitions made under paragraph (f) of section 42a-9-518 and section 47-31a, there must be no entry cost.’ If the plaintiff updates his or her complaint to say that such demand is not less than 1633 two thousand five hundred dollars,  a new entry fee of seventy-five dollars must be imposed.

9. Connecticut Practice Book, Sections 52-148a through 52-148e of the Connecticut General Statutes, and Sections 52-155 of the Connecticut General Statutes.

10. Sec. 4. (NEW) (Effective January 1, 2013) The provisions of sections 52-148a to 52-152, inclusive, of the general statutes and sections 52-156 to 52-158, inclusive, of the general statutes shall apply to subpoenas issued under section 3 of this act.

Sec. 5. (NEW) (Effective January 1, 2013) An application to the court for a protective order or to enforce, quash or modify a subpoena issued by a clerk of a court, under section 3 of this act, shall comply with the rules of court and the general statutes of this state and shall be submitted to the court in the judicial or probate district, as the case may be, in which discovery is to be conducted in this state.

Sec. 6. (NEW) (Effective January 1, 2013) In applying and construing the provisions of the Uniform Interstate Depositions and Discovery Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact such uniform provisions.

Sec. 7. Section 52-155 of the general statutes is repealed. (Effective January 1, 2013)

11. The Connecticut General Statutes, Section 52-148e(f)(2), provides further information.

12. Connecticut's General Statutes, Section 52-148e(f)(3).

13. In Sansone v Haselden, 1 Conn L Rptr. 520 in WL271143 Superior Court (1990). 

Obtaining an injunction to prohibit the taking of deposition: 

1. The parties' financial situations. 
2. Their willingness to pay the defendant's travel and living expenses
3. Whether the defendant was served personally with the writ and complaint while he or she was a Connecticut resident and has since moved out of the state, 
4. The difficulty the prospective deponent will face in traveling, and 
5. Whether or not counsel is readily available to resolve divisive issues quickly

14. For example, someone appointed in this manner may administer oaths and collect testimony on behalf of the government.

15. In C.G.S. 52-148e, se., depositions are ‘taken in the same manner as other sections.

16. If a witness refuses to comply with the subpoena, a court has the jurisdiction to keep him ‘until he establishes his willingness to cooperate.’

17. 216 Conn. 483 and 582 A. 2d 456 in Texas

18. Fairbanks American Inc. v American Home Assurance Co., 5 Conn L Rptr 470 (1992),

19. If the subpoena issued by a foreign court is ‘unreasonably and onerous or if it requests production of records not subject to [P.B. 13-28(c)],’ a Connecticut court may reject or change it.