Uniform Interstate Depositions and Discovery Act (UIDDA)-Kansas
The Uniform Interstate Depositions and Discovery Act (UIDDA)-Kansas, codified in K.S.A. 60-228a, has been signed into law by Kansas. As a result of the UIDDA, third-party discovery may be obtained more easily from states beyond the UIDDA and Kansas jurisdiction of the court where the case is being litigated.
A plaintiff must first get a lawfully issued subpoena from their home court in order to obtain a Kansas subpoena for evidence that will be utilized in another jurisdiction. Subpoenas issued by foreign courts should be sent to the clerk of the court of jurisdiction where the person named in the subpoena is situated, together with a docketing fee for a new civil case.
HOW IS A SUBPOENA ISSUED IN KANSAS
Subpoenas may only be issued to parties who have submitted a foreign summons to a clerk of court in the county where the discovery is to be performed in this state. Subpoenas issued under UIDDA and Kansas legislation in this state do not require witnesses to appear in person in front of the state's courts.
Subpoenas for service on the individual to whom an international subpoena is addressed should be issued as soon as possible. Subpoenas must be assigned a case number and entered on the docket as a civil action under K.S.A. 60-2601 and modifications. As a condition of the subpoena's delivery, UIDDA and Kansas must include or be accompanied by all lawyers of record in the case, as well as any unrepresented parties.
THE BACKGROUND TO SERVING A SUBPOENA IN KANSAS
Subpoenas for records may be issued in Kansas, although the majority of counties require the subpoena receiver to attend in person when submitting a form.
When the clerk receives the subpoena, they must issue and deliver an order of subpoena for service to the person to whom the international subpoena is addressed and, second, promptly serve the order on that person in order to comply with the UIDDA and Kansas rules.
In many jurisdictions, only depositions taken in the other state's courts or legal procedures may be utilized as evidence. Depositions are permitted in certain states for any "proceeding." In terms of their strategy, the UFDA and UIIPA are very much alike.
Some jurisdictions restrict access to information to just the parties involved in the legal action or procedure. Other states simply use the phrase "party" without any extra qualification, which may be widely understood to encompass any interested party in the proceedings. Another group of states explicitly allows anybody who would be able to take a deposition in the trial state to do so in the discovery state. Under the UIIPA, anybody who is an "interested party" may obtain information via a discovery request. The UFDA doesn't specify who may request a hearing.
THE IMPACT OF THE UIDDA AGAINST OTHER STATUTES
The UFDA covers only the "testimony" of witnesses. The UIIPA states clearly that it applies to "testimony or papers or other items. " There are some states that follow the UIIPA approach, while others appear to restrict production to documents but not physical items, and yet others are mute on the matter, but some states accept that the capacity to make documents is implicit. "To appear and provide evidence or to produce and authorize examination and copying of specific books, papers, or physical items in [that person's] possession, custody, or control," as stated in Rule 45 of the FRCP, maybe the purpose of a witness subpoena.
UFDA requires a party to submit the identical notice of deposition that would be utilized in the trial court and then serve the witness with a subpoena in accordance with the trial court's subpoena law. A motion to compel must be filed in the court where the witness resides if one is required. If the deponent's home court clerk or judge receives the notification of the deposition, a subpoena will immediately be issued. Other states need a letter seeking a subpoena from the trial court. An application or a letter of rogatory must be submitted under the UIIPA.
In most states, the home state has the option of issuing, rejecting, or canceling a summons. There are a number of places where the witness may be questioned, according to the UIDDA and Kansas.
Some states restrict the location of a deposition to the jurisdiction of the witness, while others restrict it to the county in which the witness resides. The UFDA and UIIPA have no comment on this matter.
HOW TO CONDUCT DISCOVERY IN DIFFERENT STATES
The discovery state's method is applicable. Preference is given to the discovery state (the deponent's home court) in UIIPA, as well as many other states, which allow for the employment of the trial or discovery state process. This assumption is reversed in some states, while it is ambiguous in others, and it is completely absent in others.
Both trial and discovery courts face the question of whether they may issue protective orders. Safeguarding witnesses from unethical behavior is a priority for the trial state's courts, as well as protecting its inhabitants from unjustified and unduly onerous discovery demands of the discovery state's courts. Protective orders may be issued in most four states, either explicitly or tacitly.
In determining whether and which state's privilege legislation would apply, the most challenging questions are whether or not the trial state or the discovery state should make the determinations. In this case, both countries have vital interests: the trial state wants to gather all necessary information compatible with its laws, while the discovery state wants to safeguard its citizens from invasive foreign laws.
The clerk of court of the [county or district] in which the discovery sought under the subpoena may be undertaken under the laws of this state must promptly issue a subpoena to the person to whom the subpoena is addressed and incorporate the phrases used in a foreign jurisdiction subpoena.
PROCEDURE WITH THE CLERK OF THE COURT
When anything is "presented" to a court clerk, it might be delivered or filed with the clerk as per the UIDDA and Kansas. Subpoenas issued in the name of the foreign jurisdiction must be presented to the clerk of court in the foreign jurisdiction in order to invoke the foreign jurisdiction's authority, which renders the freshly issued subpoena both enforceable and challengeable in that jurisdiction.
Upon receiving a UIDDA and Kansas subpoena, the clerk of the court will next issue an identical DISCOVERY subpoena ("issue" comprises signature stamping and assigning a docket number). The process server will pay any required filing costs, and then the discovery subpoena will be served on the deponent in accordance with the UIDDA and Kansas law.
The benefits of this method are obvious. Invoking the discovery state's jurisdiction over the deponent is as simple as having the clerk of court perform a ministerial act. The trial state's subpoenas and the discovery state's draught subpoenas are the sole UIDDA and Kansas papers that must be provided to the clerk of court in the discovery state. When a deponent is summoned to appear in court in the discovery state, the clerk of court simply reissues the original summons issued in the trial state and serves it on the deponent, ensuring that UIDDA and Kansas are served in accordance with the laws of the discovery state. The subpoena is issued and served in the discovery state without the involvement of local lawyers or the judiciary, making the UIDDA and Kansas procedure straightforward and cost-effective.
The UIDDA and Kansas legislation in those states that still need a commission or letters rogatory to take a deposition in another country will not be changed or repealed by the Act. There are certain states, however, where a commission or rogatory letter from a trial state is still required to take a deposition before it may be taken in those states.
A list of all parties, together with the names, addresses, and telephone numbers of all attorneys of record, must accompany the subpoena when it is delivered under the UIDDA and Kansas. Thereby, the deponent (or the deponent's legal representative in many cases) may quickly and easily obtain the identities of all other parties involved in the action and establish contact with those attorneys.
The UIDDA and Kansas mandate that all depositions, documents productions, and site inspections be conducted in accordance with the discovery state's laws. When a discovery state's primary goal is to protect its residents who become non-party witnesses in a case pending elsewhere, it can easily accomplish this by requiring the UIDDA and Kansas discovery procedure to be the same as it would be in the discovery state if the case had originally been filed there, thus avoiding any unreasonable or unduly burdensome discovery requests.
MODIFYING A SUBPOENA
Suppose a move to enforce, quash or alter a subpoena, or any motion to compel testimony, is filed in the discovery state. In that case, it must conform with the applicable procedural and evidentiary legislation. Another way of ensuring that residents of the discovery state are protected from unreasonable or unnecessarily onerous discovery requests is to require that any discovery motions be resolved in accordance with the laws of the state in which the case is being litigated.
When someone says they're going to "modify" a subpoena, they are referring to making changes to the conditions of the summons. In order to obtain the issue of a subpoena, according to this section, a party must submit a foreign subpoena to the district court for the county where discovery is to be performed in this state. A request for a subpoena issued according to this provision does not constitute an appearance before the courts of this state.
When a party submits a foreign subpoena to a clerk of court in this state, the clerk must quickly issue a subpoena for service upon the person to whom the international subpoena is addressed, in accordance with the court's process and the UIDDA and Kansas. The clerk's act is administrative yet sufficient to activate the discovery state's jurisdiction over the deponent. Only the subpoena issued in the trial state and the draft subpoena of the discovery state must be provided to the clerk of court in the discovery state.
Before a UIDDA and Kansas subpoena may be issued in the discovery state, the local council and a court ought to be consulted. The clerk of the court of the discovery state merely reissues the subpoena of the trial state, and the new subpoena is then served on the deponent in line with the discovery state's laws. To have a subpoena issued and served in the discovery stage, there is no need for local counsel or court intervention, nor is the procedure complicated or inefficient.
The UIDDA and Kansas procedure will not amend or eliminate the legislation in states that continue to need a commission or letters rogatory to conduct a deposition in a foreign jurisdiction. Before a deposition may be held in those states, the UIDDA and Kansas repeal the statute in those discovery states that still need a commission or letter rogatory from a trial state.
The UIDDA and Kansas stipulate that when a subpoena is issued, it must include or be accompanied by the names, addresses, and telephone numbers of all lawyers of record and any parties not represented by counsel. The committee considers that this requirement does not create an undue burden on the lawyer issuing the subpoena since the lawyer is already required to submit a notice of deposition to all lawyers of record and unrepresented parties. In comparison, the gains in the discovery stage are substantial.
This requirement makes it easier for the deponent (or, more often than not, the deponent's attorney) to acquire the names and contact information of the other attorneys in the case. The subpoena will include or be accompanied by the names, addresses, and telephone numbers of all attorneys of record and of any party not represented by counsel (which is the same information that will ordinarily be contained on notice of deposition and proof of service).
Uniform Interstate Depositions and Discovery Act Adopted - 2010
Bill Number: HB 2656
KAN. STAT. ANN. § 60-228a
Kansas Judicial Branch Click Here
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1. And paid the docket fee required by K.S.A. 60-2001
2. A subpoena issued under this provision must:
(A) Use the language in the international subpoena; and
(B) Include the phrases in the subpoena.
3. The committee concluded that the lawyer issuing the subpoena already has the responsibility to submit a notice of deposition to all lawyers of record and any unrepresented parties. Thus, an additional requirement is unnecessary.
4. The word "Presented" to a court clerk encompasses delivery and filing. The act of presenting a subpoena to the clerk of court in the discovery state, resulting in the issuance of a subpoena in the name of the discovery state, is required to invoke the jurisdiction of the discovery state, thereby rendering the newly issued subpoena both enforceable and contestable in the discovery state.