Uniform Interstate Depositions and Discovery Act (UIDDA)-Vermont

To govern depositions and discovery conducted in Vermont in connection with a civil action brought in another state, Vermont has adopted the Uniform Interstate Depositions and Discovery Act (UIDDA), with modifications appropriate to Vermont practice, which includes a provision that a request for the issuance of a subpoena under UIDDA and Vermont law does not constitute an appearance in the courts of this state.

Except for the restricted purpose of conducting discovery inside Vermont, the UIDDA and Vermont rule does not foresee an order issued by a court ordering a citizen of Vermont to surrender to the authority of another state.

BACKGROUND

To avoid placing an excessive hardship or cost on a person who is the subject of a subpoena, the party or attorney issuing and serving the subpoena must take reasonable precautions. A suitable consequence, including but not limited to lost wages and a fair attorney's fee, may be imposed against the party or attorney in violation of the UIDDA and Vermont obligation by the court that issued the subpoena.

A person who is ordered to produce and permit inspection, copying, testing, or sampling of designated electronically stored information, books, papers, documents, or tangible things, or inspection of premises, need not appear personally at the place of production or inspection. If a subpoena demands disclosure of privileged or other protected information and no exemption or waiver applies or puts a person under an excessive burden, the court for which the subpoena was issued will dismiss or amend the subpoena upon timely request.

The individual must provide the requested papers in the same order they are normally filed. The applicant must sort and mark them according to the categories specified in the subpoena. In the event that the subpoena does not specify the format in which electronically stored information is to be produced, the subpoenaed party is required to provide the requested information in the format(s) in which the subpoenaed party typically maintains the requested information or in UIDDA and Vermont formats reasonably usable by the requesting party. A witness is not required to provide duplicate copies of the same electronically stored material while responding to a subpoena.

When responding to a UIDDA and Vermont subpoena, a person is not required to provide electronically stored information from sources the requesting party has determined are not reasonably accessible owing to unreasonable difficulty or expense. The party being asked for discovery must prove that doing so would impose an ‘undue hardship or expense’ before a court may issue a protective order or force the production of documents. Even if the party making the request can establish that restrictions on discovery via the internet do not apply, the court may compel information from such sources. The discovery process may be subject to restrictions set by the court.

FOREIGN SUBPOENA IN VERMONT

When UIDDA and Vermont information is withheld from a subpoenaed party on the grounds that it is privileged or protected as trial preparation materials, that claim must be made explicitly. It must be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

 If UIDDA and Vermont information is supplied in response to a subpoena and is later claimed to be protected as trial preparation material or subject to a claim of privilege, the person making a claim may tell each party that received the information of the claim and the reason for it.   A party seeking discovery had first to acquire a domestic court order, then submit that order with the foreign court and ask that it be enforced. If the UIDDA and Vermont order is to be enforced in a foreign country, the litigant must retain the services of a lawyer admitted to practice in that jurisdiction in order to enter an appearance. 

The Uniform Interstate Depositions and Discovery Act (UIDDA) has made discovery considerably simpler to acquire. Any litigants from a jurisdiction that has approved the Act will be able to apply the Act's provisions in any foreign jurisdictions that have also embraced the Act. 

UIDDA VERMONT

A foreign subpoena must be submitted to the clerk of court in the county where the discovery is to be performed in order to obtain a subpoena. To seek the issue of a subpoena in accordance with this regulation is not the same as making a formal appearance in a court of law following UIDDA and Vermont requirements. A clerk of court must quickly issue a subpoena for service upon the person to whom a foreign subpoena is addressed when a party presents such a subpoena to the clerk.

The subpoena should be issued in accordance with Rule 45 but may contain the phrases used in the foreign subpoena, provided that they are consistent with the UIDDA and Vermont Rules. The subpoena should also inform the subpoenaed party of his or her entitlement to file a motion in Vermont court for an order to quash or amend the subpoena. However, the officer or person responsible for serving a subpoena is not required to provide a certificate of UIDDA and Vermont service or affidavit to the court issuing the subpoena. Instead, the subpoenaed party must be presented with a certificate of service or affidavit by the officer or person responsible for serving. A protective order or an application to enforce, dismiss, or amend a subpoena issued must be made to the court in the county where discovery is to be performed.

In order to get UIDDA and Vermont documents from a foreign jurisdiction that has adopted the Act, a plaintiff needs simply submit a subpoena to the court clerk in the country where the person being subpoenaed lives. However, if the subpoenaed party tries to quash the subpoena or seeks protective order in the foreign jurisdiction, or if the subpoenaed party wants to execute the subpoena in the foreign jurisdiction, the situation gets more problematic. 

The legislation in Vermont is reflective of how courts in other states might decide on matters other than the issuance of a subpoena. Through UIDDA and Vermont laws, obtaining discovery is now simpler and cheaper than ever before. It has the drawback of necessitating the hiring of out-of-state counsel if the discovery is disputed. 

THE UIDDA’S IMPACT IN VERMONT

A subpoena will be issued in the trial state by an attorney of record for a party to the case proceeding in the trial state (in the same manner that attorneys therein issue subpoenas in current actions). The attorney will next visit the discovery state county or district clerk's office (the clerk's office should have a website with information on its forms and processes) to get a copy of its subpoena form. When the originating subpoena is complete, the attorney will draft a subpoena for the state of Vermont with identical language. After the originating subpoena has been prepared and signed, the attorney will have a process server (or local counsel) deliver it to the Vermont clerk's office.

Additionally, the attorney may draft a brief transmittal letter to accompany the trial state subpoena, informing the clerk that the UIDDA and Vermont subpoena is being requested according to Vermont statutes. Once the clerk of court receives the originating subpoena, they will ‘issue’ (sign, stamp, and assign a case or docket number) a similar subpoena for Vermont. The subpoena will be filed and served on the witness in accordance with UIDDA and Vermont law by the party's process server or other agents (which includes any applicable local rules).

To comply with Vermont's Uniform Information Discovery Act, a party must provide the foreign subpoena to a county clerk in the jurisdiction where discovery is requested. As well as integrating the foreign subpoena's provisions and including clerk-issued subpoenas must include all parties' names, addresses, and phone numbers. It is important to inform the subpoenaed individual that they may file a UIDDA and Vermont request to dismiss the subpoena if they disagree with the subpoena.  . The officer or individual responsible for service of a subpoena will not return a certificate of service or an affidavit to the court. Instead, they will deliver the UIDDA and Vermont-compliant affidavit to the requestor. 

Obtaining local counsel to assist issue and serve an out-of-state subpoena is not required, thanks to the UIDDA, although it may still be essential in certain circumstances. Subpoena requests made under the UIDDA are not considered UIDDA and Vermont court appearances in the state where the record is kept. Therefore, local counsel may be required if the nonparty refuses to reply or tries to quash or alter the subpoena. Subpoena-related motions, such as those to quash, compel, or amend, must be filed in and are controlled by the state where the UIDDA and Vermont subpoena will be issued.

A registered agent in the trial state is also relevant if the nonparty is an out-of-state company. Only a small number of courts have ruled on whether an attorney may force an out-of-state firm to release documents by serving the in-state registered agent instead of complying with the UIDDA. A subpoena served in this manner is null and void and of no legal effect. 

Finally, a non-party is not required to present for a deposition or provide the discovery requested by a subpoena issued under a state's UIDDA legislation if the non-party is located outside the trial state. The subpoenaed discovery not only takes place in the state that issued the discovery subpoena but is also controlled by the laws of the discovery state. The attorney issuing the subpoena must specify where in the discovery state the nonparty may be deposed or where production (the UIDDA and Vermont documents) can be sent by the nonparty (such as a court reporting agency).

Vermont

Uniform Interstate Depositions and Discovery Act Adopted - 2012
Bill Number: Court Rule
VT. R. CIV. P. 45;
Vermont Judiciary Click Here

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Sources

1. While Vermont has enacted the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, 13 V.S.A. § 6642 et seq., no similar statutory authority exists with respect to civil action.

2. A party that receives such notice must quickly return, sequester, or delete the specified information and any copies it possesses. They may not use or disclose the information until the claim is resolved. Any party in receipt of the information has the option of submitting it to the court for a resolution of the claim as soon as possible, under seal. After being alerted, the receiving party must take reasonable measures to recover the exposed information. The information creator must keep all relevant records safe until the claim is settled.

3. Vermont Law Commission Act 45 (VRCP 45) (Subpoenas).

4. And any other relevant provisions of these Rules

5. All counsel of record in the action to which the subpoena pertains, as well as the names, addresses, and telephone numbers of any party not represented by counsel, must be included in or appended to the subpoena.

6. The rule indicates that such a provision does not constitute an ‘appearance.’ Hence, it is reasonable to conclude that a lawyer filing the subpoena in a jurisdiction where the lawyer does not have a license to practice law would not be in violation of the rule against the unauthorized practice of law.

7. If an individual is required to hire an attorney to defend the issuing of a subpoena or to enforce the subpoena in a foreign court, that attorney will need to be admitted to practice law in that state. Therefore, no outside counsel in the foreign country would be required, saving the plaintiffs further cost, assuming the summoned party agrees and does not dispute the subpoena. Counsel in the foreign jurisdiction will need to appear in court if the subpoena necessitates intervention by the court.

8. In accordance with Section 3 of the Uniform Interstate Depositions and Discovery Act (2007)

9. The opinions uphold that a company is not required to furnish documents in a different state just because it has a registered agent and does business there. 

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440 (Va. 2015); Ulloa v. CMI, Inc., 133 So. 3d 914 (Fla. 2013). Therefore, it is best practice to adhere to the UIDDA statute of the state where the discovery took place while issuing a subpoena to a business located in another state.