HOW TO DOMESTICATE A FOREIGN SUBPOENA IN KENTUCKY

This article will provide guidance on How To Domesticate a Foreign Subpoena in Kentucky.  A subpoena refers to any instrument issued by a court of record mandating a person to: attend and testify at a deposition or produce and allow examination and copying of specified books or permit examination of the premises under the person's control.

A party must submit a foreign subpoena to the clerk of the Circuit Court in 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 the state.  When a party submits a foreign subpoena to a clerk of the Circuit Court in this state, the clerk must quickly issue a subpoena for service upon the person to whom the foreign subpoena is addressed, in accordance with the process of that court. 

Uniform Interstate Depositions and Discovery Act (uidda)-Kentucky

The 1962 Uniform Interstate and International Procedure Act and its predecessor, the 1920 Uniform Foreign Depositions Act, were both efforts to bring forward uniform legislation that would allow for cross-jurisdictional discovery, but the majority of states declined to adopt these statutes. In 1962, the Uniform Interstate and International Procedure Act was adopted by NCCUSL. The act was designed to supersede any previous interstate jurisdiction acts, including

the UFDA, and was more extensive than the UFDA, having provisions on personal jurisdiction, service methods, deposition methods, and other topics. When the Uniform Law Commission developed the Uniform Interstate Depositions and Discovery Act (UIDDA) in 2007, it was the first time that litigants might gather information in foreign jurisdictions quickly and effectively.

Obtaining discovery in foreign jurisdictions will be a lot easier now that there is a law like the UIDDA. UIDDA was codified in Kentucky in 2008 with the adoption of KRS 421.360 and joined the litany of other states.

Most states passing this law helped achieve the overall goal of the Act, which was to establish a procedure that is simple to follow, requires little in the way of judicial oversight or intervention while still being cost-effective for both parties to the litigation and equal for both deponents and witnesses to the proceedings.

HOW IS A FOREIGN SUBPOENA ISSUED IN KENTUCKY

A  foreign subpoena must include the language used in the international subpoena to comply with the UIDDA and Kentucky. It is also imperative to include or be accompanied with the names, addresses, and telephone numbers of all counsel of record and unrepresented parties in the action to which the UIDDA and Kentucky subpoena pertains. A subpoena issued by a clerk of the Circuit Court must be served in accordance with any UIDDA and Kentucky rule of court or law governing the serving of a subpoena issued in this state.

An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of the Circuit Court must comply with the rules of court and UIDDA laws in Kentucky and be submitted to the Circuit Court in the county where discovery will be conducted.

A foreign subpoena must be submitted to the clerk of the Circuit Court of the county in which discovery is requested to be performed in Kentucky to seek the issue of a subpoena as per UIDDA and Kentucky. Subpoenas issued under UIDDA and Kentucky provisions do not require a person to appear before a judge or jury in the state in which they were issued.

 A clerk of the Circuit Court in Kentucky, in accordance with that court's UIDDA and Kentucky process, should issue a subpoena for service upon the person to whom the foreign subpoena is addressed as soon as practicable after receipt of a request for service.

There will be no conflict between the rules of court and the Kentucky Revised Statutes when it comes to subpoenas issued requiring witnesses to appear and give testimony or requiring the production of specified books, documents, records, electronically stored information, or tangible things and allowing inspection of the premises. It is necessary to comply with all applicable UIDDA and Kentucky state rules of court and statutes before filing an application to the Circuit Court in the county where discovery will take place for a protective order or enforce, quash or modify a subpoena issued by a clerk of the Circuit Court.

Consistency in the UIDDA and Kentucky’s application and interpretation among states that adopt it must be taken into account when implementing and interpreting this uniform legislation.

It should be straightforward for a litigant to subpoena papers in a different state if that state has enacted the UIDDA. A request for a subpoena (most states have a form) must be submitted to the state where the discovery is sought, along with the foreign subpoena (the subpoena issued in the state where the trial is pending). A subpoena prepared in accordance with the procedures of the state in which the party is seeking discovery must also be submitted. There should be a copy of the international subpoena included in this subpoena, along with the name, address, and phone number of all lawyers of record in this process. 

There should be an additional column for any party not represented by counsel to comply with the UIDDA and Kentucky. Subpoenas are issued by the clerk of the court and served in accordance with the laws of the state in which discovery is sought.

HOW A SUBPOENA WORKS IN KENTUCKY

If the clerk or another authorized official issues a subpoena, it must include specific information about who is being summoned, what the case is about, and who will be testifying on behalf of the other party when and where it is issued.  The clerk or other authorized authority should issue an unsigned but otherwise blank subpoena to a party who has requested it and must fill out the form before serving. It is forbidden to utilize subpoenas for any other reason than to compel a witness to appear at a deposition, hearing, or trial with evidence. Documents may be produced without a deposition by the direction of the Court and consent of the parties. 

If the subpoena is unreasonable or oppressive, the court may quash or modify it or condition denial of the motion on the advancement of the person on whose behalf the subpoena is issued, but the court may act promptly and in any event before the time specified in the subpoena for compliance therewith upon motion made promptly and in any event before the time specified in the subpoena for compliance. 

To serve a subpoena, it is necessary to follow the instructions for a summons. If served by someone above eighteen, the affidavit endorsed on it serves as evidence of service. Alternatively, witnesses may confirm receipt of service by signing a subpoena acknowledgment. A copy of the subpoena must be delivered or offered for delivery to the person to whom it is addressed as proof of service. A subpoena may be served anywhere in the state of Kentucky. A declaration detailing the date, method, and names of those served must be filed with the issuing court as proof of service. The server must sign off on the statement in order for it to be valid.

Subpoenas other than those issued for trial must be served with notice of the subpoena before they are served on the parties and anybody else whose information is being sought.

THE EFFECT OF THE UIDDA AND KENTUCKY

A major advantage to the UIDDA and Kentucky is that it does not need an individual to present in a foreign court to get a subpoena. The regulations of the foreign jurisdiction regulating unlicensed lawyers practicing law in that state are not breached; therefore, a plaintiff seeking discovery does not need to hire local counsel to acquire and issue subpoenas.

The UIDDA and Kentucky are silent on whether or not a move to quash the subpoena is made in the foreign jurisdiction, whether or not a protective order is requested in the foreign jurisdiction or whether or not a foreign enforcement action is sought by a person who issued the subpoena. Non-appearance wording does not seem to be provided by the statute for these acts. Unless an attorney has access to local counsel authorized to practice law in a foreign country, they may be accused of practicing law without a license in a foreign jurisdiction.

It is critical that the individual abides by the laws of the state in which they are pursuing discovery. The UIDDA does not affect any state's procedural requirements; therefore, they may have their own. The UIDDA does not address any such requirements outside its scope of work. Subpoenas may be served in any way a summons can in Kentucky. 

In addition, a practitioner must know what the UIDDA does not do and where it does not apply in their service. Only subpoenas issued in a court case are covered by the UIDDA and Kentucky. In administrative hearings and other actions where subpoenas may be issued, this does not apply.

It is important to note that the UIDDA does not override or alter any state's rules of court while a trial is taking place. As long as the trial state requires that a notice of deposition be attached to a subpoena, the UIDDA compels them to obey the trial state's subpoena regulations. UIDDA is supposed to guide the process in which the applicant may be seeking discovery in the state where they are located.

So long as the discovery that the individual is trying to get is not being challenged, the UIDDA should make it simpler, less costly, and less stressful to seek discovery across state boundaries. It is possible to get papers if there is no legal challenge to the findings and the state has accepted the UIDDA. A local attorney's aid will likely be required if the discovery is challenged. The capacity to undertake out-of-state discovery should remain the same until additional states adopt this legislation and lawyers feel more comfortable utilizing the act.

Kentucky

Uniform Interstate Depositions and Discovery Act Adopted - 2008
Bill Number: HB 174 Sponsor Stivers
KY.REV.STAT.ANN. § 421.360
Subpoena forms: Click Here
Kentucky Courts Click Here