HOW TO DOMESTICATE A FOREIGN SUBPOENA IN SOUTH DAKOTA
A foreign subpoena must be presented to the court clerk in the county where discovery is to be performed in this state to obtain a subpoena. An application for a subpoena does not constitute an appearance before the courts as per the UIDDA and South Dakota rules. It does give South Dakota courts the authority to [A.] enforce it; [B.] quash or modify it;[C.] issue a protective order or otherwise settle a dispute involving the subpoena, and [D.] impose sanctions on the attorney who requested the subpoena's issuance for any conduct that would violate the South Dakota Rules of Civil Procedure.
An attorney who is not licensed to practice UIDDA and South Dakota law in South Dakota may file a petition with a court here to enforce or resolve any other dispute relating to a subpoena issued under this section or may file a response with a court here to any petition or motion filed by any other person relating to the subpoena, without being admitted pro hac vice.
Uniform Interstate Depositions and Discovery Act (UIDDA)-South Dakota
A court clerk following UIDDA and South Dakota must issue a subpoena for service upon the person to whom the international subpoena is addressed as soon as possible after receiving a party's request. A subpoena issued is required to comply with the South Dakota Rules of Civil Procedure requirements but may otherwise incorporate the terms used in the foreign subpoena.
Only with the deponent's and parties' permission or with leave of court may a party take the deponent's testimony again. Unlike other states, South Dakota does not have standardized subpoena forms. A subpoena may be served by any officer or person authorized to make service of a summons.
Under normal circumstances, a subpoena may be served by the county sheriff or constable in charge of the jurisdiction where the witness is located. If the witness is located in the District of Columbia, the US Marshal or a deputy must serve the subpoena to comply with the UIDDA and South Dakota. A subpoena may also be served by any other individual who is not a party to the action but an elector of any state at the time the UIDDA and South Dakota service is made.
ISSUANCE OF A SUBPOENA IN SOUTH DAKOTA
A subpoena cannot be issued in South Dakota to someone, not in the state. However, a party may seek the assistance of a court in the witness's state in accordance with the UIDDA and South Dakota rules of interstate depositions and discovery in that state.
Service of a subpoena in South Dakota follows the same rules as service of a summons. On the other hand, UIDDA and South Dakota service via publishing is not an option. If the witness cannot be located, a copy of the subpoena may be left at the witness's residence with a person older than fourteen who lives there. It is necessary to include a stamped, pre-paid envelope and two copies of the subpoena, notice, and admission of service in their mailing as per the UIDDA and South Dakota requirements.
A subpoena may be served on a person who has been found legally incompetent, on a patient in a facility for people with mental illness or developmental disabilities, or on someone for whom a guardian ad litem or conservator has been appointed by delivering a copy to the individual's guardian or conservator or to one who is in charge of an institution or who has custody of them.
Subpoenas in South Dakota must be issued far enough in advance of the day on which witness appearance is necessary so that the witness has time to arrange for reasonable transportation to the place of the deposition as per the UIDDA and South Dakota. Subpoena duces tecum should provide the non-party reasonable notice. However, UIDDA and South Dakota law does not define the amount of notice an issuing party must offer to the non-party. Subpoenas in South Dakota must be issued at least three (3) business days before the day the witness is required to attend so that the witness has time to arrange for reasonable transportation.
The amount of notice an issuing party is required to provide to the non-party is undefined under UIDDA and South Dakota law. A deposition subpoena may be issued fewer than ten days before the period set for compliance, as suggested by the time limit for objecting to a deposition subpoena. In addition, the subpoena must be issued far enough advance of the day the witness is required to appear that the witness can get there using the witness's customary means of transportation.
UIDDA SOUTH DAKOTA
Subpoenas must be filed with the court clerk or sent to the secretary or other filing officer of the board or tribunal where the UIDDA and South Dakota case is currently being heard. The subpoena copy that is filed will be available for anybody to see. There is no precise time limit within which to submit the subpoena, although the attorney should normally file it shortly once it is issued.
Before serving a document subpoena, the party issuing the subpoena must provide notice of and submit a copy of the subpoena to all other parties involved in the ongoing action. Before conducting a deposition, a party must give ‘reasonable notice’ to all other parties in the action in writing to follow UIDDA and South Dakota rules.
A generic description adequate to identify the individual or specific class or group to whom the person belongs, if the deponent's name is not known, is required. An indication of what components will be manufactured as well as how the testimony will be recorded, should also be provided as per the UIDDA and South Dakota.
One may be served with a subpoena in any part of South Dakota. However, there are jurisdictional restrictions on deposition subpoenas. Examinations of South Dakota residents are limited to the counties in which they live, work, or do business in person or to other convenient places specified by the court.
Any non-South Dakota resident subpoenaed to appear for an examination must do so in the county where they were issued the subpoena or at any other reasonable location determined by the court. In order to subpoena a South Dakota citizen on behalf of a foreign party, the foreign party must file a foreign subpoena to the clerk of the circuit court in the county where discovery is sought. The clerk is required to issue a subpoena for UIDDA and South Dakota service on the person to whom the international subpoena is addressed as soon as possible after the party submits the subpoena.
Subpoenas issued in South Dakota may only be served inside the state's borders. With the witness's permission, a party may issue a discovery subpoena to an out-of-state witness even though the witness does not physically live in South Dakota. If a witness refuses to agree to an interstate deposition or discovery, the party seeking to question them must petition the court in the state where the witness lives.
The witness is entitled to reimbursement for reasonable costs incurred in obtaining the requested documents) when making a UIDDA and South Dakota document request. Since it is impossible to know how much it will cost to provide the requested UIDDA and South Dakota documents at the time the subpoena is issued, it is standard practice to have the subpoena contain a request for the producing party to identify the expenses of production, which are subsequently reimbursed by the seeking party.
While the South Dakota Code of Laws does not restrict any particular form of payment for witness fees, cash and checks are the most common ways of payment for such costs. At the time the subpoena is delivered, the required costs and travel for one day of attendance must be paid. After the first day, the witness is entitled to their daily remuneration upon request at the start of each subsequent day. If the issuing party does not pay the applicable witness fees, the witness is not obligated to attend the related deposition.
The county clerk in the county where discovery is to be performed in this state. It is not an attendance in court to seek the issue of a subpoena. To enforce or resolve any other dispute relating to a subpoena issued under this section, a lawyer who is not licensed to practice law in South Dakota may petition the courts as per the UIDDA and South Dakota. A lawyer licensed to practice law in South Dakota may respond in the courts of this state to any petition or motion relating to the subpoena filed by any other person without being admitted pro hac vice.
In the event that a foreign subpoena is presented to a clerk of court, the clerk must quickly issue a subpoena for UIDDA and South Dakota service upon the individual to whom the international subpoena is addressed. Subpoenas issued in South Dakota must be in compliance with the South Dakota Rule of Civil Procedure. Still, they may otherwise incorporate the terms used in the foreign subpoena so long as they conform to the South Dakota Rule of Civil Procedure.
Generally, an appeal from an order must be taken within thirty days after the order is signed, attested, filed, and written notice of entry is provided to the adverse party. Counsel may appeal an intermediate order made before trial by filing with the Supreme Court clerk within ten days after notice of the order's entry according to a petition for permission to appeal as well as proof of the petition's service on all other parties to the action in circuit court. A petition mailed to a clerk for filing is deemed to be filed as of the date of mailing and must be accompanied by an affidavit of mailing or certificate of service of mailing.
The Supreme Court normally considers a circuit court's discovery orders under an abuse of discretion test. However, when the Supreme Court evaluates whether a circuit court's order breaches a statutory privilege, it performs a de novo review since it participates in a legislative interpretation.
South Dakota
Uniform Interstate Depositions and Discovery Act Adopted - 2012
Bill Number: Court Rule
S.D. CODIFIED LAWS § 15-6-28.1 to -15-6-28.6; S.D. CODIFIED LAWS § 15-6-45
South Dakota Courts Click Here
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Sources
1. Subpoena under Sections 15-6-28.1 through 15-6.28.6, inclusive
2. Articles 15-6-30 through 15-6-30(g) of the Penal Code (Depositions).
Articles 19512 through 19516 of the Penal Code (Subpoena and the Attendance of Witnesses).
SDCL 15-6-28.1 - 15-6-28.6 (Interstate Depositions and Discovery).
3. Rule 12-02 of the Supreme Court of South Dakota is effective July 1, 2012, and is codified in SDCL 15-6-28.3.
4. SDCL 15-6-30(a) and 15-6-31(a)
5. Interstate depositions and discovery are governed in South Dakota by SDCL 15-6-28.1 through 15-6-28.6.
6. South Dakota Code of Laws, sections 15-6-4(i) and 15-6-4(j)
7. The following individuals may be served with a subpoena on behalf of a minor:
Someone who has legal responsibility for the minor, such as a parent.
The minors themselves if they are older than 14 years old.
The guardian ad litem or conservator, if any, is appointed by the court.
8. To comply with South Dakota Code Section 15-6-45(b)
9. There will be a daily witness fee of $20.
The SDCL 3-9-1 sets down the mileage costs that may be charged.
(South Dakota Code of Laws, Article 645(c) and Section 195-1.)
10. For the most part, the individual may expect to get $0.42 per mile in reimbursement. They may check the South Dakota secretary of state's website for the latest mileage reimbursement rate.
11. In most cases, mileage claims are restricted to just those miles are driven (SDCL 19-5-1). Mileage is calculated from the location where the subpoena was issued to the location where the witness was required to appear in court (SDCL 15-6-45(g)).
12. An order affecting a substantial right, when the order in effect is dispositive and prevents a judgment from which an appeal might be taken.
Any final order affecting a substantial right made in special proceedings.
Any intermediate order made before trial, if the Supreme Court determines that justice will be served by determination of the questions involved without awaiting the outcome.
13. It does establish the legal authority in South Dakota for compelling compliance with the subpoena, or to quash or amend the subpoena, issue any protective order, or impose penalties on the attorney seeking the issuance of the subpoena for any activity which would constitute a breach of the South Dakota Rules of Civil Procedure.
