Uniform Interstate Depositions and Discovery Act (UIDDA)-Nebraska

This article will provide guidance on Uniform Interstate Depositions And Discovery Act (UIDDA) Nebraska.  A ‘subpoena’ is any document issued by a court of record, regardless of its name, requiring a person to, in the case of a deposition, testify or provide identified books, papers, or other physical items or electronically stored information for examination, copying, testing, or sampling; or give access to specified property that is owned or controlled by the individual.

A ‘foreign subpoena’ refers to a subpoena issued by a court of record in a foreign jurisdiction in a civil matter. A party requesting a subpoena under the UIDDA and Nebraska must file a Request for the Issuance of a Nebraska Subpoena for a Foreign Jurisdiction to the clerk of the district court for the county in which discovery is requested to be conducted. It is necessary to provide the name and address of the individual to whom a subpoena will be served, as well as any other information required.

BACKGROUND

A foreign subpoena for each individual to be served and a list of all counsel of record and self-represented parties in the action to which the subpoena pertains must be included in the request. For each subpoena issued, a USD75 fee must be paid to the clerk of the district court. A USD 75 charge must be paid whenever the clerk reissues a subpoena as per the UIDDA and Nebraska.

It is the clerk's responsibility to deposit the filing fee into the Nebraska Supreme Court's Counsel for Discipline Cash Fund by the fifteenth day of the next calendar month after the State Treasurer has received it. As soon as the clerk of the district court following the UIDDA and Nebraska receives an international subpoena, the clerk is required to issue a summons for service to the individual named in the subpoena.

It is necessary to provide a copy of the list to comply with UIDDA and Nebraska requirements. This will ensure that the time, location, and technique of the discovery sought in the foreign subpoena are correctly included in the subpoena. When the subpoena requires a person to produce designated documents or information stored in electronic form or tangible objects, an attached subpoena must accurately incorporate the foreign subpoena's commands or explicitly state that the subpoena requires the person to produce those designated UIDDA and Nebraska documents or information.

A deposition subpoena issued by the clerk of court must be served, and the return must be completed. The laws and regulations of this state, including the Nebraska Court Rules of Discovery in Civil Cases, are applicable to subpoenas issued and discovery performed. It is not illegal to seek a subpoena or engage in discovery as a result of such a subpoena, nor is it illegal to practice law while doing so. Subpoena requests from lawyers or self-represented parties attest that a foreign subpoena was issued in accordance with the laws or norms of the country in which it was issued. Additionally, non-Nebraska lawyers requesting subpoenas must verify that they are licensed to practice in their home jurisdiction and have not been disbarred or suspended from practice in other jurisdictions.

When requesting a subpoena, attorneys or parties representing themselves acknowledge that the district court has jurisdiction to impose sanctions on them for false certifications in obtaining the subpoena and for any conduct related to the subpoena that violates the Nebraska Court Rules of Discovery in Civil Cases. 

A request to enforce, quash, or alter a subpoena issued by a clerk of court under the UIDDA and Nebraska must be filed as a civil action in the district court for the county where the discovery is to be performed and must conform with state legislation and regulations. An attorney licensed to practice in this state or a self-represented person may submit or oppose such a move.

ENACTMENT OF THE UIDDA IN NEBRASKA

The Supreme Court has adopted the UIDDA, based on the National Conference of Commissioners on Uniform State Laws, having twice promulgated acts dealing with interstate discovery procedures. Uniform Interstate Depositions and Discovery Act is applicable when a party in a civil case that is already active in another jurisdiction seeks to receive evidence from Nebraska.  The goal of the new rule is to establish a simple, standard, and efficient method for doing so. 

It is administrative for a clerk of the district court to issue a subpoena for the witness. The clerk effectively converts the foreign subpoena into a Nebraska subpoena and gives an official case identification code (case number). Only the request, the international subpoena, a list of counsel and unrepresented parties, and the requisite fee are needed to be submitted to the clerk. A draft Nebraska subpoena is optional but may be submitted if the asking party so desires in order to speed up the UIDDA and Nebraska process.

The clerk is not responsible for ensuring that the foreign subpoena was issued in accordance with the laws or norms of the foreign jurisdiction. Instead, the onus is on the person making the UIDDA and Nebraska request, whether via an attorney or by themselves. There must be a certification that the lawyer or self-represented party lawfully issued the overseas subpoena. Under the UIDDA, a fraudulent certification may result in a penalty. Foreign subpoenas should not be sanctioned if they were unlawfully issued because of an honest error.

No local counsel or admission pro hac vice is required for a subpoena to be issued for a lawyer admitted in a foreign jurisdiction under the UIDDA and Nebraska. Requesting a subpoena does not constitute practicing law illegally in following the UIDDA and Nebraska jurisdiction. Taking a deposition or acquiring additional evidence as a result of a subpoena is also the same in the eyes of the UIDDA and Nebraska regulations. A telephone decision from the court on an objection or direction not to respond may be requested during a deposition. If the attorneys are all admitted to practice before the court from which the judgment is sought, they may not do so during a deposition. 

Discovery conducted is governed by UIDDA and Nebraska law. So, the procedural and evidentiary law of Nebraska will apply. To protect its citizens from unwarranted or unreasonably onerous discovery demands arising from cases pending in another jurisdiction, Nebraska has a vested interest. By mandating that all discovery motions be considered under Nebraska law and that all motions directly affecting the person from whom discovery is sought must be filed in Nebraska, this interest is best served.

If only the parties to the case are concerned, motions may be brought to another jurisdiction. An order in the foreign jurisdiction to ban the deposition of Nebraskans on the grounds of relevance may be applied for by any party and determined before the deposition subpoena is ever delivered to the clerk of the district court.

HOW IS A DEPOSITION TAKEN IN NEBRASKA

After the action has begun, any party may take the evidence of anybody, including a party via deposition, upon written questions. Only with the permission of the court and on the circumstances that the court specifies may a person who is incarcerated be deposed. If a party wishes to depose on written questions, it must give the other party notice that it intends to do so.

If an interpreter is utilized, the notification must also indicate that an interpreter will be used and specify the language or interpretation used (e.g., sign language). A party may serve cross questions on the other parties within thirty days after the notice, and written questions are served. The receiving party has ten days to serve redirect questions to the other parties after receiving cross inquiries. A party may serve to recross questions from all other parties within ten days after receiving redirect questions. The time limit might be extended or shortened by the court if there is a good reason.

In this case, the officer is responsible for taking the responses and creating a record. The officer designated in the notice will be the one to take the testimony of the witness in response to the questions and prepare, certify, and deliver the deposition. They will attach a copy of the notice and the questions received by them upon receipt by the party who is taking the deposition.

All other parties must be informed as soon as possible that the deposition has been handed over to them by the officer who took it.  A subpoena may be issued in response to a request by a party in a civil action or procedure to summon a witness to testify. When used in the context of a subpoena, the word ‘trial’ refers to an event at which witnesses may be called to testify.

On the request of a party, the clerk or a judge of the court in which the action or case is occurring may issue a trial subpoena in the capacity of a court officer, and an attorney who has been granted permission to practice before the court may issue and sign a trial subpoena on the court's behalf.

A copy of the subpoena must be filed with the court on the day an attorney issues the subpoena. A deposition subpoena may be issued on behalf of the court by the person before whom a deposition can be taken. Deposition subpoenas may be issued and signed by an attorney on behalf of the court, provided that the attorney is permitted to practice in the court and has the authority to do so.

 A subpoena must indicate the name of the court from which it was issued, the name of the case, and the case number. It must order anybody to whom it is addressed to attend and testify at the time and location mentioned in the subpoena.  The UIDDA and Nebraska court has a witness fee for each day the individual will be required to appear in court. If they reside more than one mile away, the mileage rate that state workers get is also available to the individual as a witness.

 The Supreme Court has the authority to issue forms for subpoenas in civil and criminal cases and processes. Sheriffs and constables have the authority to serve a subpoena. A person who is not a party to the action or process but is at least twenty-one years old may serve the summons and complaint.

Nebraska

NEB. CT R. DISC. § 6-328(e)
Nebraska Judicial Branch Click Here
Subpoena Request Form Click Here
Subpoena For Production of Documents: Click Here
Subpoena Deposition Form: Click Here

FOR ASSISTANCE SERVING A SUBPOENA IN Nebraska

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Sources

1. ‘Person’ refers to any legal or commercial entity that includes a person, a corporation, a business trust (e.g., an estate), a partnership, a limited liability company, an association, a joint venture, or any other legal or commercial organization.

In this context, the term ‘state’ refers to any of these entities: a U.S. state, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any federally recognized Indian tribe.

2. Neb. Rev. Stat. 25-1226(1)

3. Rule 34(A)(a) requires that a subpoena for discovery from a nonparty is served and that the return be made in accordance with this rule.

4. Under the power provided to the Supreme Court by 25-1237

5. For example, Nebraska's Court of Professional Conduct rules that ‘[a] lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that are in or reasonably related to an ongoing or potential tribunal proceeding in this jurisdiction if the lawyer has been authorized by law or order to appear in such proceeding or reasonably anticipates that such proceeding will be held’  (taking a deposition in Nebraska is reasonably related to a pending proceeding in another jurisdiction).

6. It is necessary to include: 

  • The person's name and address, if known, and if not, a broad description adequate to identify him or her or the specific class or group to which he or she belongs, and 
  • a summary of the issue at hand, if applicable
  • the name or description of the officer in charge of taking the deposition.

7. Public or private corporations, partnerships, associations, or government agencies may be deposed in line with Rule 30(b) of the Federal Rules of Civil Procedure (6).

8. Section 33-139.01 requires that trial subpoenas in civil actions and proceedings that require evidence from a state employee, a political subdivision of the state, or a privately hired security guard include the following statement:

A witness in [insert name of court] has the right to be reimbursed for travel costs if he or she must leave the county where they or live to testify in another county.

Obtain compensation information from the lawyer or party that subpoenaed the individual, or the clerk of the court, if the individual is entitled to it.

9. There must be no contradiction between the laws regulating such subjects and any such forms.