The Act virtually eliminates the need for a local counsel in the state of discovery. It removes the necessity for letters rogatory or the filing of a miscellaneous action during the discovery phase of litigation. The need to retain local counsel is heavily reduced, although it might still be necessary to retain them if the discovery state from which records are being sought has not adopted the UIDDA. Under the UIDDA, a subpoena request does not constitute a court appearance and, therefore, the out-of-state litigant is not required to be licensed in the state.
It must be understood that the discovery state’s pertinent rules on how to issue the subpoena as well as specific processes, forms, deadlines, and fees should be taken into account. This is because the UIDDA states may sometimes even require the home state’s court clerk to issue a commission, court order, or letters rogatory before issuance of the subpoena. If the discovery state court requires a court order, an order for a commission may be obtained by ex parte application.
New York practitioners can obtain out-of-state discovery minus any court orders [rather than the two that would be necessitated in both states] as long as the foreign state has also enacted the UIDDA. If it has, then the New York practitioner can skip the steps of obtaining a commission or letters rogatory, engaging local counsel, and commencing a second proceeding before a foreign court.
[1.0] WHAT DOES THIS MEAN
Firstly, an out-of-state subpoena means a subpoena issued under the authority of a court of record of a state other than the state of origin. The federal court sees the governance of the Federal Rule of Civil Procedure uniformly over the process for issuing and serving a subpoena on an out-of-state witness nationwide. To date, the Civil Practice Law and Rules has no direct equivalent to Federal Rule of Civil Procedure 45, the mechanism by which officers of the court use nationwide subpoena power to obtain documents and/or depose witnesses in federal cases
To apply for an outstate subpoena, there are essentially three means of tackling procedure, namely [A.] the Uniform Interstate Discovery and Depositions Act [B.] The Uniform Foreign Depositions Act or [C.] an entirely nonuniform state procedure.
The UIDDA differs strongly from the UFDA, where the attorney needs to seek a deposition (regardless of whether they have the documents) to obtain an order that authorizes the deposition from the court. This deposition is sought from the court where the action is pending and requires the attorney to take said order to the receiving attorney or clerk in the foreign state. This receiving attorney or clerk is then required to issue the subpoena in the proper form here. The UIDDA instead merely allows the in-state subpoena to be directed to the outstate witness as per the appropriate foreign court clerk, allowing for the issue of a replica subpoena in proper form for that state. The UFDA, however, is currently not prevalent in its usage, and New York has never seen the UFDA in use.
It’s difficult to categorize the non-uniform procedure, categorized by its lack of uniformity. A few states may simply present the clerk with a notice of deposition; a few states may require one to open the floor for a miscellaneous action and obtain a court order through the procedure. Regardless, the service must comply with the receiving state’s rules of service of process, although process servers are nearly always sufficient.
[2.0] HOW TO OBTAIN A SUBPOENA IN NEW YORK FROM A DIFFERENT STATE
As long as the discovery is from a UIDDA state, it’s relatively simple to conduct discovery in New York. Previously, the party needed to obtain a mandate, writ, or commission from their court before the proceeding was initiated in a New York court. Still, this process has been modified under the New York adoption of the UIDDA. The party needs to submit the subpoena to the county clerk in the county where discovery is sought, upon which a subpoena is issued. An alternate option is the authorization of the subpoena issuance by a New York attorney, but this hinges on the receipt of the outstate subpoena, a justification for the retaining of New York practitioners by foreign counsel
Keeping in mind that any motion to quash and modify the subpoena is dependent on the rules of the state where the subpoena will be domesticated is paramount. This means that any application for a reissued subpoena needs to be mailed or personally filed by legal service, with the clerk in the court of domestication and, additionally, will require examination there. This means that requiring this subpoena to be reissued within a deadline is a tough demand since delays in receiving and resending the subpoena is to be expected by mail, use a legal service avoids some of these delays. The reissuing of the subpoena is handled by the clerk or prothonotary, depending on the state. Once the subpoena is reissued, it will receive a new index number or be signed by the clerk. Through all this, an out-of-state party cannot use a subpoena to poke around for relevant evidence but only to compel the production of specific documents that are relevant and material to the factual issues in a pending proceeding.
Even if the local subpoena is issued, the terms must follow that of the out-of-state subpoena. This means that the information within will remain the same, especially if coupled with the information of the out of state attorneys. This amendment to the C.P.L.R. brings New York in line with other states which have already adopted the Uniform Interstate Depositions and Discovery Act,
The responsibility of the County Clerk shifts accordingly. They’re required to crosscheck the outstate subpoena with a typical subpoena served within the state. They will only stamp the in-state subpoena based on the equivalent information with the aforementioned outstate subpoena.
[3.0] POINTS TO REMEMBER
It must be kept in mind that the UIDDA does not affect the procedure in trial states. For example, if the trial state requires a letter rogatory before outstate discovery can occur, the letter rogatory will take precedence, regardless of the enactment status of the UIDDA. This is because the UIDDA oversees procedure in the discovery state where deposition or discovery of materials occurs. This also means that the UIDDA governs subpoenas that are specifically issued by a court of record, including subpoenas that are issued by attorneys who are conferred the authority by the court in a trial state and barring subpoenas that are necessitated in arbitrations or other proceedings.
Additionally, procedures surrounding discovery notwithstanding the UIDDA must be understood for each state, especially regarding disputes that might occur. The rules of the discovery state govern any disputes that might occur.
The Uniform Interstate Deposition and Discovery Act has been adopted by over 30 states to make the process as straightforward as possible. These states include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin.
In these states, the party must submit the foreign subpoena to the relevant clerk of the court in the deposition county. The job of the clerk is then to reissue the subpoena based on the relevant process regulations of that state. Despite the smoothening of the procedure to a large degree, a few specific rules of civil procedure for the service state will have to be followed based on the receiving state’s general policies.
States that have not yet adopted and do not recognize the Uniform Interstate Deposition and Discovery Act include New Hampshire, Massachusetts, Wyoming, Nebraska, Texas, and Puerto Rico. In these states, the domesticating procedure is entirely different. However, it usually follows the process of an issuance request to the local court for the subpoena requirements of the asking court. This would require filling out an application, submitting a petition with attached documents, but entirely depends on the out of state procedure of the requesting court itself.
So, how do we understand the procedure for a non-UIDDA state?
This is a difficult path to maneuver. Taking the example of Texas as a state that hasn’t adopted the UIDDA, out of state parties who wish to seek discovery must comply with an interconnected and complex set of rules in the Texas Rules of Civil Procedure. Texas Rule of Civil Procedure 201.2 allows a party to an out-of-state proceeding to compel discovery from a Texas resident via an oral deposition or a deposition on written questions, both of which require document requests. The party seeking discovery will need to obtain a mandate, writ, or commission from the out of state court to specifically seek discovery.
Under Texas law, the subpoena is the instrument that compels a non-party to comply with discovery requests. A Texas court will not enforce an out-of-state subpoena against a Texas citizen. Additionally, each subpoena must be issued under the state of Texas, with the requisite identification of the person to whom the subpoena is directed or other stipulations as per the statute. It can only be issued by an attorney practicing in Texas, the court clerk, or an authorized officer for deposition.
Another feature that is not typically observed in UIDDA states is Texas’ requirement for notice, which is required for the discovery. The type of notice demanded depends on the type of discovery that is sought. An oral deposition would require notice served at a reasonable time before the deposition. In contrast, a notice of deposition through written questions must be served at least 20 days before the deposition is obtained.
If a non-party fails to comply with a valid and enforceable subpoena without adequate excuse, a court can hold the non-party in contempt and punish the non-party by fine or imprisonment. A Texas court can also compel the non-party to respond to the discovery subpoena.
Finally, dealing with matters in a federal court does not require adherence to state regulations on subpoenas. Under Rule 45 of the Federal Rules of Civil Procedure, federal subpoenas can be issued in the district court of the case and then served anywhere in the United States. However, some restrictions on this regarding the geographic location where discovery can occur or the potential motion to quash the subpoena by whoever receives it.
The UIDDA was created due to the many variances in state rules and cumbersome procedures required to serve the subpoena in another jurisdiction. It gets difficult to keep track of the web of laws to deal with in every state, and the UIDDA smooths the process over wherever possible. While it’s not particularly universal, it remains a useful tool in the requesting of discoverable documents and scheduled depositions.
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1.NY CPLR § 3119 (1) (2012)
2.FRCP 45: Rule 45. Subpoena
3.This can be seen in even in states like Nevada that adopted the Uniform Interstates Depositions and Discovery Act and repealed the Uniform Foreign Depositions Act, codified as NRS 53.050, 53.060. And 53.070.
7.Rule 201 – Depositions in Foreign Jurisdictions for Use in Texas Proceedings; Depositions in Texas for Use in Foreign Proceedings, Tex. R. Civ. P. 201
If a court of record of any other state or foreign jurisdiction issues a mandate, writ, or commission that requires a witness’s oral or written deposition testimony in this State, the witness may be compelled to appear and testify in the same manner and by the same process used for taking testimony in a proceeding pending in this State
8.Rule 176 – Subpoenas, Tex. R. Civ. P. 176
Every subpoena must be issued in the name of “The State of Texas” and must:(a) state the style of the suit and its cause number;
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party’s attorney of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.
9.Rule 176 – Subpoenas, Tex. R. Civ. P. 176 (“176.4 Who May Issue.A subpoena may be issued by:(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.”)
12.Rule 176 – Subpoenas, Tex. R. Civ. P. 176
(“176.8 Enforcement of Subpoena.(a)Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.(b)Proof of payment of fees required for fine or attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party’s attorney of record that all fees due to the witness by law were paid or tendered.”)