Uniform Interstate Depositions and Discovery Act (uidda)-New Mexico

The Uniform Law Commission created the Uniform Interstate Depositions and Discovery Act (UIDDA) New Mexico to simplify the laborious and time-consuming procedure of conducting out-of-state discovery for state court matters. The Uniform Interstate Discovery Act (UIDDA), which was enacted in 2007 and has since been adopted by the vast majority of states, establishes uniform procedures for obtaining depositions and other discoveries from parties located in other jurisdictions. The UIDDA brings state court proceedings involving witnesses from other states in line with Federal Rules of Civil Procedure 45 as per the UIDDA New Mexico.

A subpoena must be issued by the state court where the matter is situated in order for a party to conduct discovery as per the UIDDA and New Mexico. The next step is for the litigant to deliver the subpoena to the county clerk in the jurisdiction where the discovery is to be made, according to the UIDDA New Mexico. The clerk will then issue a local subpoena to be served on the party from whom discovery is being sought as soon as possible. The subpoena has to follow all applicable UIDDA and New Mexico discovery laws and guidelines.

BACKGROUND

Suppose a deposition has to be conducted in a state where discovery is being sought, but a commission or letter rogatory from the trial court is still required. In that case, the deposition cannot be done in that state without first being overturned by the UIDDA New Mexico procedures. Since the UIDDA does not consider a subpoena request a court appearance, the out-of-state plaintiff is exempt from having to procure a license to practice law in the state. Subpoenas issued under the UIDDA and New Mexico do not need the use of local counsel or admission pro hac vice. 

INTERSTATE DEPOSITION

A foreign subpoena issued in another state must be submitted to the clerk of the district court in New Mexico, where the discovery is to be conducted following the requirements of the UIDDA New Mexico. Subpoena requests made in this manner are not considered court appearances in this jurisdiction.

The clerk of court must quickly issue a subpoena for service upon the person to whom the foreign subpoena is addressed when a party submits such a subpoena to the clerk of court as per the UIDDA New Mexico.  For a  foreign subpoena issued to be valid, the UIDDA New Mexico specifies that the blank subpoena must use the same language as the foreign subpoena and include 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.

The court in the district where discovery is to be conducted must be petitioned for a protective order or to enforce, dismiss, or amend a subpoena issued by a clerk of court.  In an effort to streamline the onerous, time-consuming process of conducting out-of-state discovery for state court cases, the Uniform Law Commission developed the Uniform Interstate Depositions and Discovery Act (UIDDA). The UIDDA harmonizes the out-of-state subpoena process for state court cases with the Federal Rules of Civil Procedure 45.

The UIDDA repeals the law in those states where discovery is sought that still requires a commission or letter rogatory from a trial court before a deposition can be taken in those states. Under the UIDDA, a subpoena request does not constitute a court appearance, and therefore, the out-of-state litigant is not required to be licensed in the state. 

HOW IS A DOMESTIC SUBPOENA SERVED IN NEW MEXICO

Every subpoena needs to state the [A.] name of the court from which it is issued and  [B.] the title of the action and its civil action number. It is also necessary to command each person to whom it is directed to attend and give testimony or to produce and permit inspection and be substantially in the form approved by the Supreme Court. 

A command to produce evidence or to permit inspection, copying, testing, or sampling may be joined with a command to appear at trial or hearing, or deposition or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced in accordance with the UIDDA New Mexico requirements. 

All subpoenas should issue from the court for the district in which the matter is pending. The clerk should issue a subpoena, signed but otherwise blank, to a party requesting it, who will complete it before service following the UIDDA and New Mexico. An attorney authorized to practice law in New Mexico and who represents a party as an officer of the court may also issue and sign a subpoena on behalf of the court.

A subpoena may be served in any place to be compliant with the UIDDA New Mexico and can be served by any person who is not a party and is not less than eighteen (18) years of age. Formerly, pre-trial production of documents or tangible items in the possession or control of a nonparty could only be obtained by a subpoena issued in conjunction with a notice of deposition of the person in possession of the UIDDA and New Mexico specified documents.

The federal rule requiring ‘[p]rior notice’ is ambiguous, though it has been construed to require ‘reasonable notice prior to service of the subpoena.  The New Mexico Rules of Civil Procedure for the District Courts were based upon the Federal Rules of Civil Procedure. Although the New Mexico rules diverge from the Federal Rules when appropriate, the committee regularly reviews New Mexico's Rules of Civil Procedure for the District Courts when the Federal Rules are modified to comply with the UIDDA New Mexico. 

The New Mexico Rule authorized only the district court clerk to issue UIDDA New Mexico subpoenas. The existing UIDDA  New Mexico rules follow the current federal rule, which allows a party's attorney to issue subpoenas in the name of the court. Following the model of the current federal rule, the UIDDA New Mexico rule now authorizes an attorney for a party to issue and sign subpoenas in the attorney's capacity as an officer of the court. Any attorney authorized to practice law in New Mexico serving as attorney to a party may issue trial and hearing subpoenas as well as deposition and production, and inspection subpoenas.

The clerk continues to have the power to issue subpoenas under the UIDDA and New Mexico. A clerk's subpoena will be of particular use to a party not represented by counsel. The clerk of the court for the district in which the matter is pending is the appropriate person to issue subpoenas for service anywhere in the state.

Following the model of the current federal rule, subpoenas no longer need to contain the seal of the court. They must, however, now contain the civil action number of the case for which the subpoena is issued.  When a person is beyond the subpoena power of the New Mexico District Court, Rule 1-045 NMRA provides that the party to the New Mexico proceeding which seeks to subpoena items, conduct inspection, or conduct a deposition in another state is going to do so in the manner provided by law or rule of the other state. 

Whenever a party schedules a deposition (whether or not a subpoena is issued compelling attendance at the deposition), the UIDDA and New Mexico rule requires that notice of the deposition be sent to each party. When a subpoena for production or inspection is served in conjunction with the notice of deposition, the party seeking production at the deposition must also send notice of the issuance of the subpoena to each party along with the notice of the deposition. 

Suppose a person declines to honor a subpoena that is inconsistent with the geographical limitations of this rule. In that case, the person cannot be held in contempt for failure to attend the deposition unless the court entered a compelling order for attendance at that place.  The Supreme Court has approved a form for proof of service of a subpoena.  Subpoenas for the production of tangible items or inspection of premises now may issue without the necessity for setting a deposition at the same time. When a subpoena for production or inspection is issued, the party responsible for the issuance of the subpoena must provide timely notice to all parties of the issuance of the subpoena to comply with the UIDDA and New Mexico specifications.

Even within the same state, subpoenas might be rejected for seemingly minor procedural infractions from one court to the next. It is important to submit the UIDDA and New Mexico subpoena to the appropriate court. Once it is authorized and returned, it may then be submitted to the out-of-state court in order to seek the out-of-state subpoena. Following receipt of the out-of-state court's stamped subpoena, the court should issue the subpoena with the standard Discovery-related attachments (i.e., Notice to Take Deposition, Notice to Patient, Notice of Service, Health General Article, etc.)

New Mexico

Uniform Interstate Depositions and Discovery Act Adopted - 2009
Bill Number: Rule 1 -045.1 Sponsor Komer
N.M.R. Civ. P. Dist. Ct. 1-045.1
New Mexico Court Click Here

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Sources

1. To apply to enforce, quash, amend, or seek a protective order respecting a subpoena issued according to the UIDDA, or to appear in court in connection with such an application, however, does need a local state license.

2. Civil District Court, New Mexico, 1-045.1 Adopted as of August 7, 2009, according to Supreme Court Order No. 09-8300-018.

3. Promulgated in 2007, the UIDDA has been adopted by the majority of states and provides a standardized means for litigants to take depositions and obtain discovery from individuals and entities located out of state.

4. Or the copying, testing, or sampling of designated documents, electronically stored information, or tangible things in the possession, custody, or control of that person, or to permit inspection of premises at a time and place therein specified.

5. Subpoena for witnesses and documents:
(1) Any party or staff requiring the attendance of a witness from any place in the state to any designated place for the purpose of taking the testimony of such witness at a deposition or public hearing in a proceeding before the commission shall make a written application to the commission or presiding officer requesting that a subpoena be issued to compel the attendance of such witness.

(2) Likewise, a written application requesting the issuance of a subpoena duces tecum to compel production of specific books, papers, accounts, or other documents must also be made to the commission or the presiding officer if production at deposition or public hearing is desired.

(3) Such written application must set forth reasons supporting the issuance of the subpoena for the production of specific books, papers, and other documents as the case may be.

(4) All applications for the issuance of subpoenas shall be accompanied by the proposed subpoena, a form for which is available from the commission upon request.

B. Who may issue: Subpoenas shall be signed and issued by the presiding officer or any commissioner unless the issuance would be an abuse of process. A copy of the signed and issued subpoena shall be filed.

6. In 1991, the federal rule was amended to allow pretrial subpoenas of documents or tangible items without the necessity of noticing and scheduling a simultaneous deposition. In 1997, the New Mexico Supreme Court similarly amended Rule 1-045 NMRA.

7. Biocore Medical Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 667 (D. Kan. 1998). The committee considered but rejected this construction, preferring to set a specific time that will assure prior notice while also recognizing the possibility that a court might reduce the time under appropriate circumstances.

8. Rule 1-045 NMRA

9. A subpoena may (1) command a person to attend a trial or attend a hearing, (2) command a person to appear for a deposition, (3) command a person to permit inspection of premises, (4) command a person to produce items at trial or a hearing, or (5) command a person to produce items for discovery or inspection prior to trial. A subpoena to produce items or permit inspection may, but need not, command the person to attend a trial, hearing, or deposition. Thus, Rule 1-045 NMRA now permits a party to subpoena items or obtain inspection without simultaneously scheduling a deposition.

10. Rule 1-045(A)(1)(d) NMRA now provides that subpoenas shall be substantially in the form approved by the Supreme Court, and the Court has approved forms consistent with the requirements of Rule 1-045 NMRA. Civil Form 4-505 NMRA.

11. Mass. Gen. Laws Ann. 123A Sec. 11 (West 1985) ‘Discovery Within Commonwealth for Proceedings Outside Commonwealth.’

12  Subpoenas may be served by any person authorized to serve the process under the New Mexico rules of civil procedure for the district courts. The return of service shall be filed promptly after service. The return shall be by certificate if service is made by a county sheriff or the county sheriff's deputy. Otherwise, the return shall be by affidavit. The form for the return of service is included with the form of a subpoena, available from the commission upon request.

(2) The witness being subpoenaed shall receive fees in the amount and the manner as provided in civil cases in the district courts of this state.

(3) Whenever a subpoena is issued at the request of a party, the cost of service thereof and the fee of the witness shall be borne by the requesting party.

D. Enforcement: The commission, any commissioner, staff, or any party may seek enforcement of the subpoena pursuant to Sections 62-10-9, 63-7-1.1, 63-9-19, 63-9A-20, 63-9B-14, 63-9H-14, 65-3A-34, and 70-3-19 NMSA 1978, or other applicable law.

13. The local rule in the state where the applicant is  seeking the Discovery to ensure that the subpoena complies with those rules (i.e., number of days before a deposition that the subpoena needs to be served, distance the court requires a deponent to travel to appear at a deposition, fees to be paid to a deponent, etc) (i.e. number of days before a deposition that the subpoena needs to be served, distance require for a deponent to travel to appear at a deposition, fees to be paid to a deponent, etc.)