Uniform Interstate Depositions and Discovery Act (UIDDA)-Texas

Many things, including interstate discovery, are done differently in Texas than the norm. Texas is not a signatory to the UIDDA.  Discovery subpoenas issued by the courts in one state are not inherently enforceable in another, just like any other exercise of interstate jurisdiction. 

Suppose the subject of a discovery request does not agree to comply with a subpoena issued from another state voluntarily. In that case, the requestor will need to seek the aid of an appropriate authority in the state where the subject lives or can be found.

BACKGROUND

The Uniform Interstate Depositions and Discovery Act (UIDDA) is a model legislation that was issued in 2007 by the Uniform Law Commission with the intention of streamlining this procedure. As a result of the UIDDA, a subpoena issued in one state can be sent directly to the appropriate court in another state where the discovery is sought to be conducted, and the clerk of the court there can convert it into a locally enforceable subpoena that can be served like any other subpoena issued in that state with a simple ministerial act. At any stage, a court is not required unless enforcement is required or the witness requests confidentiality.

The Uniform Interstate Drug Enforcement Act (UIDDA) has been enacted in all but a handful of states. While similar bills have been filed in Texas previously, it seems unlikely that the state would adopt a new norm soon. The process of seeking discovery in Texas is often as easy as obtaining an order from the originating court authorising the discovery to occur in Texas and asking the appropriate authority in Texas to help. This is because Texas does not have its own set of rules, procedures, or statutes governing how to seek discovery in another state. The Texas court system will then help the applicant under the tenets of comity.

A witness may ‘be forced to attend and testify in the same way and by the same procedure utilised for taking evidence in a cause ongoing in [Texas]’ if an out-of-state ‘mandate, writ, or commission’ has been issued. After that time, the rules of procedure apply in the same way to a non-discovery party's request or other demand for testimony as they do to any other case proceeding in Texas. Following the procedures for a typical discovery notice and subpoena in Texas, a deposition may be conducted orally or in writing, with or without the need to present papers (i.e., a ‘duces tecum’). Obtaining remote testimony from Texas for an out-of-state trial or arbitration hearing is also likely doable under, however the remedy procedure should a witness fail to present as and when requested may not be enough.

HOW IS AN OUT-OF-STATE SUBPOENA ISSUED IN TEXAS

A Texas subpoena may be issued by [A.] a clerk of court, [B.] a Texas-licensed attorney, or [C.]  a Texas-authorized deposition officer (such as, among others, a court reporter or notary public). In such a case, the subpoena must be physically delivered to the witness by a sheriff, constable, or private process server. 

A subpoena may be enforced by either the court from which it was issued ‘or a district court in the county in which the subpoena was served.’ Therefore, it is possible to issue and serve a subpoena in Texas without filing a miscellaneous procedure, as is the case with the UIDDA. However, if the individual applicant prefers a venue ready to swiftly force compliance (and maybe award penalties or costs as a consequence for noncompliance) or settle any issues that emerge during a deposition or other testimony, it is sometimes advantageous to initially initiate such a lawsuit in Texas. 

The ‘relevance’ or ‘materiality’ of a discovery request in an out-of-state process is not a matter that may be heard by a Texas court. Foreign courts having jurisdiction over the underlying cause have exclusive authority over such matters. Although a non-party in Texas will be protected from too onerous or harassing demands, the Texas court will merely provide its jurisdictional aid by ordering the witness to present for testimony and/or produce documents. That is, the original court has exclusive jurisdiction over any disagreements between the parties about the case's subject matter, and a Texas court will not weigh in on such concerns.

Obtaining discovery from a person or business in Texas for a lawsuit or other out-of-state proceeding is not all that different. However, it does require the extra step of first getting the out-of-state (or foreign) court to issue a ‘mandate, writ, or commission’ rather than an attorney simply issuing a subpoena in their state, which can be converted into the subpoena of another state under the UIDDA. The only catch is that an out-of-state party seeking discovery or testimony will have to pay more to have an appropriate authority in Texas help them.

HOW IS A SUBPOENA ISSUED IN TEXAS

In accordance with Federal Rule of Civil Procedure 45, a subpoena can be served anywhere in the country without first having to be translated into the local language or authenticated by a state or local authority. Service is uniform as well and may be done even in other nations when aimed towards a U.S. citizen.

A foreign subpoena issued against a resident of Texas will not be honoured by Texas courts. A ‘mandate, writ, or commission’ issued by the foreign court is required before a foreign party may serve a subpoena on a resident of Texas. The party seeking the mandate, writ, or commission may seek to compel either an oral deposition, a deposition based on written questions, or document requests without a deposition. Only an attorney licenced to practise law in Texas, a Texas court clerk, or a Texas law enforcement officer authorized to conduct depositions may issue a subpoena in that state. 

The subpoena and accompanying notification make up this Texas discovery subpoena. A non-party witness may only be compelled to respond to a discovery request by a subpoena. Service of the Notice and Subpoena on a nonparty requesting production of documents without a deposition must occur a ‘reasonable period’ before the answer is due. However, the subpoena cannot be served until after the ten (10) day deadline specified in the notice to provide documents has passed. It's also important to remember that the individual applicant is barred from serving the Notice and Subpoena any sooner than thirty (30) days after the conclusion of any relevant discovery period. More than one practitioner has fallen victim to these regulations.

(TRCP 200.1(a)) At least 20 days prior to the scheduled deposition date, a notice of deposition on written questions with or without a request for materials must be issued. Subpoenas may be delivered alongside or after the notice, depending on the circumstances.

The Subpoena might be delivered at the same time as the notice, or at a later date.  The Texas Requirements of Civil Procedure provide a convoluted series of rules that must be followed by parties from out of state that seek discovery from Texans. 

A party to an out-of-state case may subpoena a Texas resident to provide discovery in the form of an oral deposition or a deposition on written questions. Document requests are possible throughout both kinds of depositions. A separate document request is also acceptable for parties located outside of Texas to use in order to compel discovery in Texas courts. 

To force a non-party to answer discovery questions in a Texas court, you need to issue a subpoena. No citizen of Texas may be forced to comply with a subpoena issued in another state by a court in Texas. Each subpoena must be issued in the name of the State of Texas and specify the style of the suit and the cause number. It is imperative for the subpoena to name the court in which the suit is pending,  indicate the date the subpoena was issued and  name the person to whom it was issued. Additional details for a subpoena would specify the time, place, and nature of the action required by the person to whom it was issued and name the party at whose instance the subpoena was issued. 

While it is not required, it's a good idea to follow the rules nevertheless. Subpoena objections, deposition disagreements, and motions to compel may all be heard and decided by the court in an ancillary procedure that can be opened before the subpoena is served. The sort of finding being conducted dictates the notice period. 

Any sheriff, constable, or non-party adult in Texas over the age of eighteen may legally serve a subpoena in Texas by presenting a copy of the subpoena to the witness and accepting payment of any expenses associated with the service. Subpoenas are invalid under the law if they lack the proper attachment of the requisite fees.

A non-party may be held in contempt of court and punished with a fine or jail if they refuse to comply with a legal and enforceable subpoena without a reasonable justification. The non-party may be ordered by a Texas court to respond to the discovery subpoena.

In a case where counsel asked the Texas court to reject the foreign court's commission because the foreign court ‘did not adequately analyze relevance and materiality,’ the Fourteenth Court of Appeals ruled that Texas courts considering commissions from other states do not have jurisdiction to consider whether the foreign court's commission was defective. 

The Texas courts ‘did not have power to quash or restrict the depositions.based on a conclusion that the information is irrelevant,’ as the Fourteenth Court of Appeals declared. Parties from outside the state where the lawsuit is being heard should file a motion for a ruling on the deposition's relevance in that state.

Texas

Uniform Interstate Depositions and Discovery Act Adopted - 2008
Bill Number: SB 2624 Sponsor McNally
Tex. R. Civ. P. 201.2
Texas Courts Click Here

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Sources

1. Rule 201.2 of the Texas Rules of Civil Procedure (‘TRCP’) implements Section 20.0102 of the Texas Civil Practice and Remedies Code and applies to discovery requests brought to Texas from outside the state.

2. According to TRCP 201.2, a ‘mandate, writ, or commission’ from the court where the complaint is ongoing is required in order to gather evidence in Texas for use in a case outside of Texas.

3. TRCPs 176 and 205

4. Refer to TRCP 176.4, 176.5.

5. Article 176.8(a) of the Texas Revised Civil Procedures Code. Also, Section 3769a–b of the Texas Revised Civil Statutes (1984).

6. On the flip side, nothing is quite arduous as trying to obtain discovery from a foreign national in a foreign country—especially European countries—which involves complex treaties, conventions, and the disdain foreign jurisdictions have for the broad scope of discovery allowed by courts in the United States. 

7. St. Luke's Episcopal Hospital v. Garcia, 928 S.W.2d 307, 312 (Tex.App—Houston 1996, original proceeding).

8. Rule of Civil Procedure 205.3 (a).

9. The applicable law in this instance is Section 205.2 of the Texas Rules of Civil Procedure

10. A ‘reasonable period’ before an oral deposition is when the Notice is to be served. 199.2 of the Texas Civil Procedure Code (a).

11. In order to conduct discovery in Texas, a party must first acquire a ‘mandate, writ, or commission’ from the foreign court ordering the specified discovery (Tex. R. Civ P. 201.2; Tex. Civ. Prac. & Rem. Code 20.002). The court may then order the witness to testify, although at least one Texas Court of Appeals has said that Rule 201.2 ‘does not necessitate that Texas courts do so.’ No. 03-13-00205-CV, 2013 WL 3013872 (Tex. App.—Austin June 11, 2013, no pet)

12. Tex. R. Civ P. 199.2(a) states that ‘reasonable time’ must elapse between the time a notice of an oral deposition is issued and the time the deposition is taken. The notice and subpoena might be served at the same time or at a later time (Tex. R. Civ P. 205.2).

13. A document custodian is entitled to $1.00 for the production and certification of documents in response to a discovery subpoena. According to Section 22.004 of the Texas Code of Civil Procedure and Remedies, this fee is required at the moment the subpoena is issued.

14. Every subpoena must: (1) be issued in the name of the State of Texas; (2) state the style of the suit and its cause number; (3) state the court in which the suit is pending; (4) state the date on which the subpoena is issued; (5) identify the person to whom the subpoena is directed; (6) state the time, place, and nature of the action required by the person to whom the subpoena is directed; (7) identify the person at whose instance the subpoena is issued, and the party’s attorney of record; (8) state the text of the rule regarding contempt; and (9) be signed by the person issuing the subpoena (TRCP 176.1).

15. Case No. 14-17-00380-CV, Centennial Psychiatric Assocs., LLC v. Cantrell, 2017 WL 6544283, at *7 (Tex. App.—Houston [14th Dist.] Dec. 21, 2017.

16. In Matter of Issuance of Subpoenas and Depositions of Bennett, 502 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2016, no pet