HOW TO DOMESTICATE A FOREIGN SUBPOENA IN North Carolina

This article will provide guidance on How To Domesticate a Foreign Subpoena in North Carolina.  A foreign subpoena must be submitted to the county clerk where discovery is to be performed in North Carolina to seek that an order is issued under the UIDDA and North Carolina. It is not necessary to appear in court to obtain the issuing of a subpoena under the UIDDA and North Carolina.

After receiving a foreign subpoena in this state, a clerk of court is required to open an appropriate case file, assign a file number and collect the required filing fee before issuing a subpoena for service on the individual named in the foreign subpoena.  A subpoena issued must include [A.] the phrases included in the subpoena from another country, and [B.] include or be accompanied by the names and contact information of any party who is not represented by counsel in the action to which the subpoena pertains as per the UIDDA and North Carolina. 

Uniform Interstate Depositions and Discovery Act (UIDDA)-North Carolina

Even if the Uniform Interstate Depositions and Discovery Act (UIDDA or ‘Uniform Act’) have been approved by many states, the Act is still subject to the UIDDA and North Carolina’s underlying rules addressing service and discovery. One of the states that deviate from the Uniform Act in subtle ways is North Carolina. 

As of December 1, 2011, any cases in North Carolina that were pending at the time or were filed after that date are covered by North Carolina's UIDDA. A party to a foreign action may submit a foreign subpoena to the clerk of the county where discovery will be performed in North Carolina—according to the UIDDA and North Carolina, making such a request does not include appearing in court in the state of North Carolina.

DIFFERENCE IN UIDDA IN NORTH CAROLINA

A uniform form or subpoena is not required in North Carolina, unlike in many other jurisdictions that have embraced the Act. When a North Carolina subpoena is needed, an out-of-state attorney may simply include the request for an NC subpoena with the international subpoena—along with the check for payment, and the clerk will issue a North Carolina subpoena in its place.

A subpoena issued under the Uniform Act must include or be accompanied by the names, addresses, and telephone numbers of any counsel of record or unrepresented parties in the hearing.

An attorney cannot suggest that they have the right to force the production of documents from a party outside of North Carolina, as stated under the state's Model Rules of Professional Conduct. It is, therefore, advisable to state clearly on the face of the North Carolina subpoena that it is issued pursuant to that state's version of the Uniform Act and solely for the purpose of being incorporated when preparing a North Carolina subpoena to be incorporated by the clerk of another state in a subpoena issued under that state's version of UIDDA. The same preventative action should be taken by any outside counsel presenting an out-of-state subpoena for an issue in North Carolina.

According to the UIDDA and North Carolina, civil action expenses are determined by specific legislation. While the legislation refers to differing costs for actions filed in the district or superior court, foreign subpoenas will be viewed as actions in the superior court. Consequently, a charge of USD 200 will apply. 

The subpoena must be obtained from the correct county clerk. Depositions may only be held in the county where a North Carolina citizen lives or works as per the UIDDA and North Carolina. The first step in scheduling a deposition is making sure the deponent may be forced to attend the deposition because of their domicile or place of work, which may be tempting to do near an airport or at a court reporting agency with video-deposition capabilities.

In addition, the county clerk from which the subpoena should be issued will be determined by this information. 

SERVING A SUBPOENA IN NORTH CAROLINA

UIDDA and North Carolina law mandate that the clerk open a court file, assign a file number, collect the money, and issue a North Carolina subpoena for service when a party submits a foreign summons to the clerk. Rule 45(b) of the North Carolina Rules of Civil Procedure outlines the procedures for serving a subpoena. Any individual who is not a party and is not less than eighteen years of age may be served under said North Carolina Rules. Service may be delivered in person or by registered or certified mail with a return receipt request (RMA).

Under the UIDDA and North Carolina, subpoenas issued according to Section 1F-5 are subject to North Carolina's Rules of Civil Procedure relating to discovery and subpoenas. While Section 1F-5 states that North Carolina's Rules of Civil Procedure may only apply if a disagreement develops between a party seeking third-party discovery and the person from whom discovery is sought, Section 1F-6 and the North Carolina Comment thereto imply otherwise. This is where the Uniform Act differs from the North Carolina law.

North Carolina rules and statutes require that any request for protective orders or requests to enforce, quash or modify an order issued under Section 1F-6 of the Act ‘must comply with those rules or statutes and be submitted to the court in the county where discovery is to be conducted,’ says the Uniform Act. When there is a disagreement about discovery between parties to an action (as opposed to between courts), the party opposing it must seek appropriate remedies from that court (rather than a court in the state where discovery is sought) and thus deviates from Section 1F-6's Uniform Act as per the UIDDA and North Carolina’s requirements.

According to the North Carolina Comment, Section 1F-6 was meant to impose wording from the Uniform Act's Comment that recommended issues between parties should be brought to the court, where the matter is now underway. As a further step, Section 1F-6 mandated a state-by-state approach to resolve conflicts, regardless of whether the UIDDA and North Carolina’s legalities merely impact the parties to an action or a third party to whom discovery is sought. Such a restriction ‘invites gamesmanship amongst counsel because practically every argument over discovery would likewise 'impact' the third party from whom discovery is requested,’ as the UIDDA and North Carolina Comment also mention.

The North Carolina Rules of Civil Procedure govern any such conflicts, and they must be decided in a North Carolina court. As long as there are no problems with the third party, the individual may use the Act's straightforward procedure to conduct North Carolina discovery of third parties located outside of the state. This way, any conflicts that may arise between the parties can be addressed in their respective home states while also adhering to the UIDDA and North Carolina.

To the extent that specific UIDDA and North Carolina procedures are followed, North Carolina courts permit the issuance and service of subpoenas against residents of the state (including private persons, businesses, governments, and other organizations). To compel the presence and testimony of North Carolinians, as well as the production of documents or the examination of properties, subpoenas issued from other states may be employed. To compel someone in North Carolina to appear before a court in another state, the individual must first issue and serve an out-of-state subpoena.

If the trial is held anywhere other than the home state, the individual must serve a subpoena according to the UIDDA and North Carolina laws. Suppose the individual needs to obtain multiple copies of the subpoena after the state's clerk has issued it. In that case, they may have to deliver extra copies to the North Carolina Clerk of Court or process server, or local counsel in the state. A copy of a subpoena from the county where the applicant would want to serve their summons in North Carolina should be enough for this purpose. To get a copy of a subpoena form document, they may need to contact the county clerk's office. Subpoenas issued in North Carolina and the applicant state must match up.

It will be necessary to obtain a process server in North Carolina or a local attorney to serve papers. Local lawyers may handle subpoenas in the state of North Carolina. After the requisite paperwork is verified, it is important to send a physical copy of the issued subpoena to the North Carolina process server. The clerk of court in the county where the person to be served now lives will receive both the signed subpoena from the applying state and the completed (but not yet issued) North Carolina subpoena from the process server.  The subpoena will be issued by the Clerk of Court, who will sign, stamp, and give a case or document number to it. The local council must cover any filing costs.

North Carolina

Uniform Interstate Depositions and Discovery Act Adopted - 2011
Bill Number: HB 379 Sponsor Glazier
N.C. GEN STAT. §1F-3
Guidance North Carolina Legislature Click Here
Subpoena Form Click Here
North Carolina Judicial Branch Click Here

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Sources

1. As per G.S. 7A-305(a)(2)

2. Protective order applications must be made in accordance with the rules and legislation of this state and must be presented to the court in the county where the discovery is to take place. Parties to the action who oppose discovery must seek an appropriate remedy from a court that has jurisdiction over their case, not a state court that has jurisdiction over where the discovery takes place. 

3. Subpoenas issued by North Carolina clerks of court are subject to service in accordance with G.S. 1A-1, Rule 45(b) of the North Carolina Rules of Civil Procedure. 1 of 2011-247

4. Chap. 1F of the North Carolina General Statutes contains ‘the Act,’ which governs interstate deposits and discoveries.

5. According to the Uniform Act, N.C.G.S. 1F-3

6. On the website of the North Carolina Courts, the individual may find the AOC-G-100 subpoena, which can be filled out.

7. According to Section 1F-3, the fee for issuing a foreign subpoena may be found.

8. ‘or transacts his business in person’ under Rule 30(b)(1) of the North Carolina Rules of Civil Procedure.

9. 1F-3. Issuance of a subpoena.

(a) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this State. A request for the issuance of a subpoena under this act does not constitute an appearance in the courts of this State.

(b) When a party submits a foreign subpoena to a clerk of court in this State, the clerk, in accordance with that court's procedure, shall promptly open an appropriate court file, assign a file number, collect the applicable filing fee pursuant to G.S. 7A-305(a)(2), and issue a subpoena for service upon the person to which the foreign subpoena is directed.

(c) A subpoena under subsection (b) of this section must:

(1) Incorporate the terms used in the foreign subpoena; and

(2) 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. (2011-247, s. 1.)

10. General Provisions Governing Disclosure,’ ‘Persons Before Whom Depositions May Be Taken,’ ‘Deposits Upon Oral Examination,’ ‘Deposits Upon Written Questions,’ and ‘Production of Documents, Electronically Stored Information, and Things; Entry Upon Land for Inspection and Other Purposes’ are all part of the rules that govern the discovery process (Subpoena). 

11. 1F-6. Application to court.

An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under G.S. 1F-3 must comply with the rules or statutes of this State and be submitted to the court in the county in which discovery is to be conducted. Where a dispute exists between the parties to the action, the party opposing the discovery shall apply for appropriate relief to the court in which the action is pending and not to the court in the state in which the discovery is sought. (2011-247, s. 1.)

12. In order to comply with N.C.G.S. Chapter 1F, the individual should make sure that the local council should send the clerk of the court a letter identifying that a North Carolina subpoena is being sought.