HOW TO DOMESTICATE A FOREIGN SUBPOENA IN WASHINGTON

This article will provide guidance on How To Domesticate a Foreign Subpoena in Washington.  The Washington Superior Court Civil Rules are the fundamental statutes controlling subpoenas in Washington.  Subpoenas for depositions may be used to compel witnesses to attend court for a deposition, a trial, or any other legal proceeding when testimony from the witness is required as per UIDDA Washington requirements.

Washington state courts have a rule that allows inspection subpoenas that require a party to be present during an inspection.

Uniform Interstate Depositions and Discovery Act (UIDDA)-Washington

A subpoena may be issued in Washington and signed by an authorized person in order to be applied according to UIDDA and Washington rules.  A subpoena issued in the state of Washington must be either ordered by a judge or a subpoena issued by a judge. The clerk of court in the county where discovery is needed is the one who issues these subpoenas. 

If the defendant has served notice of taking a deposition or otherwise seeking discovery, or if the plaintiff has served notice that the person to be deposed is leaving the state and will be unavailable unless the deposition is taken within the thirty days following service of the summons and complaint, then the deposition must be taken within the thirty days. The UIDDA and Washington laws of the other jurisdiction must be followed if the location of examination, production, or inspection is outside of Washington. 

Every Washington subpoena must include the case number, the name of the issuing court, the name of the court where the action is pending, the name of the action, and the case number.  Anyone above the age of eighteen in Washington may serve a subpoena. However, an affidavit of service is required when service is rendered by anybody other than a duly commissioned officer. When it comes to civil issues, subpoenas issued in Washington cannot be served outside of the state. Only in an active case may subpoenas be issued and served.

Typically, only third parties (not involved in the case) will get a subpoena. To obtain discovery from a party, a party may serve a notice of deposition, interrogatories, or request for the production of documents or inspection of premises. Although subpoenas are not expressly prohibited by the rules, they are not typically served.

DOMESTIC SUBPOENA IN WASHINGTON

It is possible to serve a subpoena by either personally delivering a copy of the UIDDA and Washington to the witness or leaving a copy at the witness's residence with a responsible adult. Service may be made on an individual in charge of any regular place of business or activity of the entity, provided that the individual served is not a plaintiff in action, or by registered or certified mail addressed to the entity at the entity's principal office if the entity has no registered agent or if the registered agent cannot be served with reasonable diligence. The Secretary of State of Washington accepts service of process on behalf of entities in Washington if the other methods of service fail.

Proof of service must be made by affidavit when the individual delivering the subpoena is not a duly commissioned officer. Any non-party deponent who is going to be testifying at a deposition in Washington state must be given reasonable written notice at least five working days in advance of the deposition by the party issuing the subpoena. Not providing timely notification may result in consequences for the deponent, but it is not a basis for the dismissal of the subpoena. 

The party issuing the subpoena must provide a reasonable amount of time for the other side to comply with the subpoena. Subpoenas for UIDDA and Washington discovery purposes may be issued to individuals who are not parties to the proceeding. Still, the party issuing the subpoena must inform the other parties of the impending or completed service of the subpoena. 

Unless the parties agree differently or the court rules otherwise, parties must be served with a subpoena at least five days before the subpoena is served on the witness if it does not contain a demand to appear for deposition. When a witness lives more than twenty miles away from the courthouse or outside the county where the action is ongoing, the party seeking discovery must make an ex parte application to the court or to the judge, commissioner, referee, or clerk of the court for the issue of a subpoena.

WHERE CAN A WASHINGTON CITIZEN APPEAR FOR A DEPOSITION

A Washington citizen may be subpoenaed to appear in a deposition, present papers, or enable inspection at [A.] the county in which the witness lives, works, or transacts business; or [B.] another location the court deems suitable. A non-Washington resident may be required to appear for a deposition, present papers, or enable inspection at the county where the subpoena was served or within forty miles of the site of service) or at any other suitable place specified by court order.

FOREIGN SUBPOENAS IN WASHINGTON

Washington state courts have ruled that civil subpoenas issued in the state cannot be served on witnesses located outside of Washington. The party issuing the subpoena must comply with the UIDDA and Washington laws of the foreign jurisdiction in order to have a subpoena issued there. 

In actuality, out-of-state discovery by stipulation is often sought first by counsel. Counsel should follow the Uniform Interstate Depositions and Discovery Act (UIDDA) procedures if appropriate in the state where the discovery is sought and the opposing party refuses to concede. A foreign party seeking to conduct UIDDA and Washington discovery must file a foreign subpoena to the clerk of court in the county where the discovery is to be done under the Uniform International Discovery Act (UIDDA) in that state. When the clerk receives an international subpoena, they issue a domestic subpoena to be served on the intended recipient.

The Uniform International Disclosure of Documents Act (UIDDA) is a concise law that simplifies the procedure of obtaining subpoenas in foreign jurisdictions by doing away with the necessity to start a miscellaneous case with the court. In addition, a UIDDA and Washington request for an international subpoena is no longer considered a court appearance. Clients may save the expense of starting a case and hiring local lawyers following UIDDA and Washington requirements.

Under UIDDA, a subpoena issued in the state where the case is pending need only be sent to the Clerk of the Court where discovery is to be performed (the discovery state) after it has been finished (the foreign subpoena). Subpoenas issued in the discovery state utilizing information from overseas subpoenas may be served in accordance with the discovery state's UIDDA and Washington subpoena laws.

The only places where the UIDDA method may be used are those where UIDDA or a precursor law, such as the Uniform Foreign Depositions Act, is in effect and where litigation is now active. As per Charca-Lupaca v. Maza,  the subpoena from the litigation state must be accompanied by a completed subpoena for the District of Columbia, even though the language of The D.C. UIDDA is similar to the model language. The Court also issued a warning, noting that UIDDA and Washington's subpoenas issued under UIDDA are often issued quickly, with one exception: medical documents. 

Compared to the practice of selecting commissioners to issue subpoenas in foreign jurisdictions, the UIDDA is undoubtedly an improvement. However, UIDDA and Washington rules are not universal in their application across the country. Due to the fact not all courts are adhering to UIDDA, a fundamental step of serving the UIDDA and Washington subpoena would be to contact the Clerk of the discovery jurisdiction and follow the processes they prescribe. These steps may be far more involved than needed to comply with UIDDA, but they increase the likelihood that a foreign subpoena will be served on time.

To request issuance of a UIDDA and Washington subpoena, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted. A request for the issuance of a subpoena does not constitute an appearance in the courts of Washington state. When a party submits a foreign subpoena to a clerk of court as per UIDDA and Washington, the clerk, in accordance with that court's procedure, will promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

A UIDDA and Washington subpoena must incorporate the terms used in the foreign subpoena or 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.

Washington

Uniform Interstate Depositions and Discovery Act Adopted - 2012
Bill Number: HB 2195 Sponsor Rivers
WASH. REV CODE 5.51.020
Case Assignment Area Designation and Case Information Cover Sheet Click Here!
Foreign Subpoena Instruction Sheet Click Here!
Guidance and Subpoena form Click Here
Washington Courts Click Here

for assistance domesticating a serving a subpoena in Washington state

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Sources

1. Wash. Super. Ct. Civ. R. 30 (oral depositions, subpoenas for depositions);

 Wash. Super. Ct. Civ. R. 31 (written depositions, subpoenas for depositions);

 Wash. Super. Ct. Civ. R. 37 (motions to compel and sanctions); 

Wash. Super. Ct. Civ. R. 45 (rules pertaining to discovery) (subpoenas generally).

2. (Washington State Supreme Court Rule 45(a)(1)(C), (a)(3))

3. The court where a civil case or procedure is ongoing under its seal. (Wash. Super. Ct. Civ. R. 45(a)(4

1. A judge, commissioner, or referee of the court
2. the court clerk in response to a praecipe (a written request), or 
3. an attorney of record who represents a party to the case. 

This is the most usual way to issue a subpoena in the state of Washington. Any other person otherwise allowed by legislation.

Wash. Super. Ct. Civ. R. 45(a)(4); RCW 5.56.010)

4. (Wash. Super. Ct. Civ. R. 45(e)(3)).

5. Young v. Key Pharm., Inc., 819 P.2d 814, 816 (Wash. Ct. App. 1991); 

In re Det. of Stout, 150 P.3d 86, 97 (Wash. 2007)

6. (Wash. Super. Ct. Civ. R. 30, 31, 33, and 34; see 4 Wash. Prac., Rules Practice CR 45 (6th ed.)).

7. According to Rule 45(b)(1) of the Supreme Court of Washington, civil litigation is subject to mandatory arbitration.

8. State v. Adamski, 761 P.2d 621, 623 (Wash. 1988), holds that delivery of a subpoena is null and void if it is not made in accordance with the Washington Superior Court Civil Rules.

9. A party seeking to take the deposition of a non-party witness in Washington must provide at least five business days' written notice to the other parties (Wash. Super. Ct. Civ. R. 30(b)(1)).

10. In re Det. of Stout, 150 P.3d at 97; Young, 819 P.2d at 816

11. Any other remedial sanction, if the court determines that the sanctions specified in RCW 7.21.030(2)(a) to (c) would not terminate the ongoing contempt: incarceration; forfeiture of up to $2,000 per day for each day the contempt continues; an order designed to ensure compliance with the previous order; or incarceration; or a combination of these.

(RCW 7.21.030(2).)

12. A court can order a person found in contempt to pay a party for any losses suffered by the party due to the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney's fees (RCW 7.21.030), in addition to the remedial sanctions listed in RCW 7.21.030(2). (2).

 A subpoenaed witness in the state of Washington is entitled to the following upon their request: 

1. Attendance fees. 
2. Mileage fees for traveling to and from the place where their attendance is required. An allowance fixed by the court for meals and lodging, if any, for a witness residing: outside the county where the action or proceeding is pending; or 
3. more than 20 miles from the place where the court is located

13. Subpoenas may be issued by the court of the resident's home state (Wash. Super. Ct. Civ. R. 45(e)) if the UIDDA does not apply.

14. UIDDA has been adopted by the District of Columbia at D.C. Code 134411448

15. Charca-Lupaca v. Maza, D.C. Super. Ct. No. 2010 CA 6934 2 (Daily Washington Law Reporter, Vo. 138, No. 252, Page 2669)

16. The party seeking the records must appear in court and make the necessary showing before a subpoena is issued for the production of medical records under D.C. Code 14-307.