HOW TO DOMESTICATE A FOREIGN SUBPOENA IN West Virginia

This article will provide guidance on How To Domesticate a Foreign Subpoena in West Virginia. The West Virginia Code and the West Virginia Rules of Civil Procedure govern civil subpoenas.  During the discovery phase in West Virginia, a party may issue a subpoena for the production of documents and objects, entrance on land for inspection and other reasons (subpoena for production or inspection), and deposition subpoenas. Production and inspection subpoenas and deposition subpoenas may be served together or individually per the UIDDA West Virginia requirements.

Uniform Interstate Depositions and Discovery Act (UIDDA)-West Virginia

Subpoenas may be issued in the state of West Virginia by a court clerk or a lawyer serving in a judicial capacity. Production and inspection subpoenas, if issued separately from a subpoena for a deposition in West Virginia, must be issued by the circuit court in the jurisdiction where the production or inspection is to take place.

UIDDA and West Virginia law require that subpoenas for depositions be issued by the circuit court in the county where the deposition is scheduled. Within specific parameters, the deposition site is specified in the notice of deposition. Every subpoena must be in Form 33 (Civil Case Subpoena) as found in the Appendix of Forms to the West Virginia Rules of Civil Procedure. 

DISCOVERY SUBPOENAS IN WEST VIRGINIA

Form 33 (Civil Case Subpoena) must be used for all subpoenas. A West Virginia subpoena may be served by anybody who is not involved or interested in the lawsuit and who is above the age of eighteen. Any person or entity in West Virginia may be issued a subpoena to provide discovery evidence. However, discovery subpoenas sent to minors, the mentally ill, or incarcerated individuals are subject to different procedures for service. 

Subpoenas in West Virginia are served, requiring that the issuing party must physically deliver a copy of the subpoena to the individual being subpoenaed. Subpoenas may be issued to domestic or foreign corporations. Still, the party doing the issuance must ensure that a copy of the document may be served in person or on the agent or attorney-in-fact for the corporation who is allowed to take service on the corporation's behalf by appointment or law. Although there is no regulation outlining the specifics of how service is made on state or public companies, in practice, it is handled in the same manner as service on domestic businesses.

There is no prescribed minimum period for subpoena service under West Virginia's Rules of Civil Procedure.  Subpoenas for 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. It should be specified that no such notification is necessary if such is the case.

RULES GOVERNING A SUBPOENA IN WEST VIRGINIA

Before serving a subpoena for production or inspection on a non-party witness, the issuing party must provide notice to all parties involved. Non-party witnesses may only be subpoenaed if given enough notice beforehand so that the parties can raise any objections they may have. A copy of the UIDDA and West Virginia subpoena may be served on the attorney or party by giving it to them, leaving it at their office with a clerk or other person in charge, or leaving it at their residence or habitual place of a habitation with a family member who is at least sixteen years old. Alternatively, service may be enacted by sending it to the attorney or party's last known mailing address, or if no one can be reached at the address given, it should be left with the court clerk.

All other parties to the case must be given adequate written notice of the issuing party's plan to issue a deposition subpoena. Only in the county where the deponent lives, works, or transacts business in person or at such other suitable site as is specified by order of the court may a deponent be compelled to appear for the examination. A party or attorney issuing and serving a subpoena must make reasonable efforts to avoid unduly burdening or financially burdening a person subject to the subpoena. 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 this obligation by the Court for which the subpoena was issued. 

 A person ordered to produce and allow inspection and copying of specified books, papers, documents, or physical items or to allow examination of premises need not be personally present at the location of production or inspection unless ordered to appear for deposition, hearing, or trial. A person required to produce and permit inspection and copying may serve written objection to inspection or copying of any or all of the designated materials or premises upon the party or attorney designated in the subpoena within fourteen days after UIDDA and West Virginia service.

In the event of an objection, the party serving the subpoena must not be permitted to view and duplicate the documents or visit the premises without a court order authorizing such activity. Any time after receiving notice of an objection to a subpoena, the party issuing the subpoena may file a motion seeking an order to compel the production. Any non-party or official of a party will be shielded from considerable costs associated with the examination and copying required by such an order to compel production. 

The subpoenaed party must either provide the requested papers in the order in which they are normally filed or arrange and label the documents in accordance with the categories specified in the subpoena.  If evidence is withheld from a subpoenaed party on the grounds that it is privileged or protected as trial preparation materials, the claim must be stated explicitly and must be supported by a description of the nature of the information.

OUT-OF-STATE DISCOVERY IN WEST VIRGINIA

The method through which discovery may be obtained from a non-party witness who resides outside of the UIDDA and West Virginia jurisdiction of the issuing court. A subpoena may be served in any county in West Virginia.  To request the issuance of a subpoena, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted as per UIDDA and West Virginia laws. A request for the issuance of a subpoena under the UIDDA and West Virginia does not constitute an appearance in the courts of this state.

The applicant submits the foreign subpoena to the clerk of the court in West Virginia, whereinafter the clerk is required to evaluate and promptly issue a subpoena for UIDDA and West Virginia service upon the individual. The named party in the foreign subpoena follows the requirements for procedure as per the UIDDA and West Virginia. It is vital to [A.] incorporate the exact terms used in the foreign subpoena, and [B.] the UIDDA and West Virginia subpoena issued by the clerk must 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 for the UIDDA and West Virginia subpoena to be applicable. 

A foreign party may subpoena a West Virginia resident under the Uniform Interstate Deposition and Discovery Act (UIDDA) by delivering a foreign subpoena to the court clerk in the county where discovery is sought. The clerk is obligated to issue a subpoena for service in West Virginia to the individual to whom the overseas subpoena is addressed as soon as the party submitting the subpoena requests it. 

UIDDA and West Virginia rules state that subpoenas issued in West Virginia may only be served inside the state. It follows that a party seeking to subpoena a non-party witness located in another state must first get and serve a subpoena issued by a state that does have jurisdiction over the witness.

Subpoenas for discovery purposes issued in West Virginia are not binding on witnesses located in other states. A subpoena issued in the non-jurisdiction party according to the norms of that jurisdiction is required for a party seeking discovery of a non-party witness situated outside of the originating court's jurisdiction. If the state where the witness is situated has adopted the UIDDA, a party may be allowed to subpoena the witness's deposition testimony from another state. 

The legal ramifications of ignoring a UIDDA and West Virginia subpoena's associated costs are not defined under the West Virginia statute. An objection to a subpoena might be made, however, if the witness is not compensated for their time. The party that issued the subpoena in West Virginia is responsible for making first contact with the non-party witness or their counsel in the event that the witness does not comply with or opposes the subpoena. The party that issued the discovery subpoena may endeavor to compel compliance by filing either a demand for compliance or a motion of contempt.

West Virginia

Uniform Interstate Depositions and Discovery Act Adopted - 2016
Bill Number: SB 107 Sponsor Trump
W.VA. CODE §56-12-3
Subpoena form Click Here
West Virginia Judiciary Click Here

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Sources

1. Subpoena-related provisions are as follows:

1. Section 45 of the West Virginia Code (subpoenas generally).
2. Keplinger v. Virginia Elec. & Power Co., 537 S.E.2d 632, 641–42 (W. Va. 2000) for a discussion of W. Va. R. C. P. 26–37 (discovery subpoenas).
3. The statutes of West Virginia from 56-12-1 to 56-12-8 (Uniform Interstate Depositions and Discovery Act).

2. W. Va. R. C. P. 26(a) and 45

3. Writ of Production or Inspection

Someone subject to a subpoena for production or inspection may be required to:

Give access to books, papers, and objects for examination and duplication as required.

Check premises.

4. West Virginia Rule of Civil Procedure 45(a)(1))

5. (West Virginia Rule of Criminal Procedure 45(a)(3))

6. W. Va. R. C. P. 45(a)(2)

7. Each subpoena issued by a state must bear the following information:

1. The issuing authority's official title.
2. The title of the case.
3. Where this case is now being heard.
4. The case identification number in a legal proceeding.

West Virginia Rule of Criminal Procedure 45(c), (d), and (e).

A subpoena should :

1. Issue orders requiring all recipients to either allow an examination of their premises or produce and allow inspection of certain books, papers, or physical items in their possession, custody, or control.
2. The time and location of manufacturing or inspection must be specified.

8. Found in the Appendix of Forms to the West Virginia Rules of Civil Procedure, Paragraph 45(a)(1),

9. W. Va. R. C. P. 45(b)(1) states that if a non-party witness is required to testify, the party making the request shall pay their expenses for one day of attendance and travel.

10. In accordance with Rule 4(d)(1) of the West Virginia Rules of Civil Procedure (A).

11. Bedell, 686 S.E.2d at 599 (W. Va. 2009), citing State ex rel. Progressive Classic Ins. Co. v. Bedell.

12. W. Va. R. Civ. P. 45(d)(3)(A)(i) states that a subpoena may be quashed or amended by the court if it does not provide a reasonable amount of time for compliance.

13. (West Virginia Rules of Criminal Procedure 5(b) and 45(b)(1).)

A party represented by counsel shall be served via such counsel unless the court otherwise directs (West Virginia Rules of Civil Procedure 5(b) and 45(b)(1)).

14. There are a few requirements for the notification:

1. Explain where and when the deposition will take place.
2. An adequate overall description of the individual being examined or the group to which they belong in the absence of their name.
3. If a subpoena for production or inspection is to be served on the witness, specify what documents need to be delivered.

(West Virginia Revised Code Section 30(b)(1))

15. Rule 45 of the West Virginia Rules of Civil Procedure governs the conduct of discovery in West Virginia by non-resident plaintiffs in cases pending outside of West Virginia.

16. Section 56-12-3, Code of West Virginia

17. W. Va. R. C. P. 37(a)(2) and 45(d)(2)(B) provides that the issuing party must wait for an order from the court that issued the contested subpoena if the witness or party refuses to cooperate or disagrees to any aspect of the subpoena. According to West Virginia Rule of Civil Procedure 37(a)(2), the party seeking the order to compel must first make an effort to settle the disagreement via informal means before filing a motion to compel. If the issuing party is unable to settle the matter amicably, it must promptly notify the other parties and the individual who is being ordered to produce or ask the court for permission to force a response, designation, or inspection.