HOW TO DOMESTICATE A FOREIGN SUBPOENA IN GEORGIA

This article will provide guidance on How To Domesticate a Foreign Subpoena in Georgia. In Colorado. The Uniform Interstate Discovery and Depositions Act passed in Georgia, making it easier for Georgia lawyers to get subpoenas for depositions, document production, and inspection of premises in other states that have enacted the same uniform law, and will make it easier for lawyers in those states to do the same in Georgia. The UIDDA in Georgia takes the form of reciprocal legislation and is only available to lawyers when both states have passed the same law. 

In 2007, the Uniform Interstate Depositions and Discovery Act (UIDDA) was published by the Uniform Law Commission. With Georgia UIDDA Service procedures, depositions of out-of-state witnesses and the production of discoverable evidence outside the trial state are made easier and more cost-effective.

Uniform Interstate Depositions and Discovery Act (UIDDA)-Georgia

A subpoena issued by a court in the trial state may be presented to a clerk of the court in the state where discoverable papers are sought under UIDDA. The clerk will issue subpoenas for Georgia UIDDA Service of the original subpoena's target after they receive the overseas subpoena. There must be identical Georgia UIDDA Service provisions in the issued subpoena and contact information for all attorneys of record and any party not represented by counsel to comply with the subpoena.

The Act removes the requirement for a commission or local counsel in the discovery state, letters rogatory, or filing a miscellaneous action during the discovery phase of litigation and needs minimum court control. The regulations of the state where the discovery happens must be followed if the discovery is allowed by the subpoena. In addition, moves to dismiss, enforce, or alter a subpoena issued pursuant to Georgia UIDDA Service rules must be filed in and regulated by the procedures of the discovery state.

ROLE OF THE CLERK OF COURT

The clerk of the superior court in the county where the person receiving the subpoena lives must receive a foreign subpoena to issue a subpoena. It is not necessary to appear in court if the individual asks to issue a subpoena according to Georgia UIDDA Service procedures. A clerk of the superior court in Georgia must quickly issue and deliver to an individual who has been served with a foreign subpoena a summons for service upon the person to whom the summons is addressed. The foreign subpoena's provisions should be included in the Georgia UIDDA Service subpoena.

A subpoena can only be issued in Georgia if the international subpoena's foreign jurisdiction has approved a version of the ‘Uniform Interstate Depositions and Discovery Act.’ However, this is not applicable in a criminal case. A witness may be compelled to appear and testify by subpoena issued by the clerk of the superior court of the county where the witness resides, in the same manner, and by the same process and Georgia UIDDA Service procedure as may be employed for taking testimony.

In addition to stating the court, clerk, and proceeding title, a subpoena must also order anybody to whom it is addressed to appear and provide testimony or evidence at the time and location mentioned in the subpoena. Subpoenas in blank may be obtained by electronic or other methods from the court clerk upon request by parties, their counsel, or the grand jury.

To serve as an officer of the court for any deposition, hearing, or trial associated with the action, an attorney who is the counsel of record may issue and execute a subpoena acquired from the clerk of court by electronic or other means. Subpoenas for grand jury proceedings may be issued by the district attorney, and the grand jury has the right to make such a request.

In the event that someone misuses a subpoena and is convicted for contempt of court, they will be fined USD300.00 or imprisoned for twenty days. The clerk of the superior court of the county where the person receiving the subpoena lives must be contacted to seek to issue an international subpoena under the Georgia UIDDA Service.  According to the rules of Georgia UIDDA Service, a superior court clerk is required to quickly issue and deliver an appropriate subpoena for service upon any person to whom a foreign subpoena has been issued if the requestor is a party in a civil action. It is required that a subpoena include the name of the court, the name of the clerk, as well as the title of the action and that each individual to whom it is intended must arrive at the time and location stated by the subpoena and provide testimony or produce evidence at that time and place.

The clerk of court should make blank subpoenas accessible to parties, their counsel, or the grand jury upon request by electronic or other methods. Additionally, as an official of the court, the clerk of the court may issue and execute a subpoena acquired by electronic or other means from the counsel of record in a proceeding for any deposition, hearing, or trial conducted in connection with such proceeding.

REQUIREMENTS OF A FOREIGN SUBPOENA IN GEORGIA

 A subpoena must be fully executed before it may be served. The Federal Rules of Civil Procedure 45 govern the issuance of subpoenas. The subpoena must be issued, signed, and sealed under a court seal, including the clerk's signature. To be legitimate, a subpoena requiring the appearance of an individual in court as a witness must have been signed and issued by a clerk.  This means that a mere attorney’s signature cannot be considered sufficient, according to Georgia UIDDA Service. Subpoenas to which the defendant's lawyer signed the clerk's name, under a broad order from that officer to ‘prepare’ the subpoenas in the case, are also considered invalid. 

A subpoena's signature and seal are nothing more than ‘ministerial acts,’ with the only purpose of the subpoena being to notify a witness of their obligation to appear in court. A statute is considered a ‘directory’ when it has no substantial rights attached to it, no harm can be caused by ignoring it, and the legislative purpose can be achieved in a manner other than that prescribed, with substantially the same results.  A defendant's duty is to ensure that all necessary witnesses appear in court. Thus, it becomes the obligation of the defendant, not the trial court, to assure the appearance of witnesses by issuing subpoenas when the defendant chooses to represent themselves. 

The clerk of the superior court may properly issue Georgia UIDDA Service to a requesting party in a pending case by providing a blank subpoena except for the clerk's signature and the court's seal. Clerks of county recorder courts may issue blank subpoenas to police officers to be completed by the officers and served upon witnesses in pending cases. 

As the clerk is authorized to issue a subpoena signed and sealed ‘but otherwise in blank,’ the necessary information could be filled in before Georgia UIDDA Service by the party requesting the subpoena, thus providing a witness with a subpoena complete with all Georgia UIDDA Service information required. 

REQUESTING ISSUANCE OF A FOREIGN SUBPOENA IN GEORGIA

To request the issuance of a subpoena under Georgia UIDDA Service regulations, a party should submit a foreign subpoena to the clerk of the superior court of the county where the person receiving the subpoena resides. A request for the issuance of a Georgia UIDDA Service subpoena cannot constitute an appearance in the courts of this state.

When a party submits a foreign subpoena to a clerk of the superior court in this state, the clerk should promptly issue and provide to the requestor a subpoena for Georgia UIDDA Service upon the person to which the foreign subpoena is directed. The subpoena should [A.] incorporate the terms used in the foreign subpoena; and [B.] 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.

In addition to the Georgia UIDDA Service mechanism for issuing subpoenas, whenever any mandate, writ, or commission is issued out of any court of record in a foreign jurisdiction, a witness may be compelled by a subpoena issued by the clerk of the superior court of the county in which such witness resides to appear and testify in the same manner and by the same Georgia UIDDA Service and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.

An application for a protective order or to enforce, quash, or modify a subpoena issued by the clerk of the superior court will have to comply with the statutes and court rules of this state. It shall be submitted to the superior court of the county in which the subpoena was issued.’

THE FORM OF A SUBPOENA IN GEORGIA

 Subpoenas may be issued which require the attendance and testimony of witnesses and the production of objects or documents at depositions or hearings. The party on whose behalf the subpoenas are issued will be responsible for completing and serving the subpoenas sufficiently in advance of the hearing to secure the attendance of a witness, the deposed testimony of the witness, or the production of Georgia UIDDA Service objects or documents at the time of the hearing.

Subpoena forms may be obtained from the Court's website. Every subpoena must: [A.] be in writing and state the title of the action; [B.]  be filed with the Court at least five calendar days before the hearing or deposition at which a witness or document is sought [C.]  be served on all parties, and [D.]  identify the witnesses whose testimony is sought or the Georgia UIDDA Service documents or objects sought to be produced.

 A subpoena may be served at any place within Georgia and by any sheriff, sheriff's deputy, or any other person not younger than eighteen years of age. A certificate endorsed on a copy of the subpoena may show proof of service. Subpoenas may also be served by registered or certified mail, and the return receipt is what is prima facie proof of Georgia UIDDA Service. Georgia UIDDA Service of a subpoena directed to a party may be made by serving the party's counsel of record.

The Court may require the party issuing the subpoena to advance the reasonable cost of producing the Georgia UIDDA Service documents or objects. The Court has the power to enforce subpoenas through the imposition of civil penalties. Once issued and served, unless otherwise conditioned or quashed, a subpoena will remain in effect until the close of the hearing or until the witness is excused.

 A party may serve a notice to produce to compel the production of documents or objects in the possession, custody, or control of another party in lieu of serving a subpoena. For Georgia UIDDA Service to be applicable, a notice to produce will have to be in writing and signed by the party seeking production of documents or objects or by the party's attorney or representative of the party represented. Any Notice to Produce should be directed to the opposing party or the opposing party's attorney,  served on all parties, and filed with the Court. 

Georgia

Uniform Interstate Depositions and Discovery Act Adopted - 2012
Bill Number: HB 46 Sponsor Jacobs
G.A. § 24-13-112 (2014)
Georgia Judicial https://georgiacourts.gov
Subpoena for Deposition-Clerk Form: Click Here
Subpoena for Deposition Attorney Form: Click Here
Subpoena for the Production of Evidence: Click Here
Witness Subpoena: Click Here

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Sources

1. HB 46, sponsored by Representatives Jacobs, Lindsey, Willard,  Oliver, Lane, and Weldon),  almost passed l but got caught in the legislative traffic jam in the Senate at the end of the 2011 session. It was one of the first substantive bills to pass this year and go to Governor Deal for signature.

2. The names, addresses, and phone numbers of all counsel of record in the action to which the subpoena pertains and any party not represented by counsel must be included or accompanied by the subpoena.

3. In accordance with the Georgia Code 24-13-113 (2014)

4. A subpoena issued by the clerk of superior court under Code Sections 24-13-112 or 24-13-113 must be served in accordance with Code Section 24-13-23 and served prior to the presence required by such subpoena.

5. Once issued, a subpoena may be quashed by the Court if it appears that 

1. the subpoena is unreasonable or oppressive
2. the testimony, documents, or objects sought are irrelevant, immaterial, or cumulative;
3. the subpoena is unnecessary to a party's preparation and presentation of its position at the hearing; or
4. basic fairness dictates that the subpoena should not be enforced.

6. The State of Georgia v. Brantley, 147 Ga. App. 569, 249 S.E.

7. Horton v. State (1900) 112 Ga. 27, 37 S.E. 100.

8. Horton v. State, 112 Ga. 27, 37 S.E. 100 (1900),

9. Kegler v. State, 267 Ga. 147, 475 SE2d 593 (1996)

10. Under former O.C.G.A. § 24-10-20 1981 Op. Att'y Gen. No. U81-37 (decided under former O.C.G.A. § 24-10-21).

11. If a police officer had just issued a traffic citation, there would be a pending case for purposes of subpoena issuance. 1983 Op. Att'y Gen. No. U83-41 (decided under former O.C.G.A. § 24-10-21). 

9. Under Code Section 24-10-112 or 24-10-113