As a core component of due process and the key to a fair and speedy trial, many times depositions, testimony, discovery, and the producing of records and documents will be involved in a pending court case or legal matter. Many times all parties, witnesses, and potential evidence will be located within the same state. Sometimes, however, a witness or document will need to be obtained from another state or country. When this happens, a foreign subpoena is required to compel the individual to testify or the company to produce the documents.
There are two main categories of foreign subpoenas: interstate or international.
An interstate subpoena is served when a deposition, testimony, discovery, or the producing of records and documents need to be conducted in or on a person residing in a state other than the one in which the case originates.
An international subpoena is served when a deposition, testimony, discovery, or the producing of records and documents need to be conducted in or on a person residing in a country other than the one in which the case originates.
Each state and country has its own Rules of Civil Procedure dictating what constitutes legal service, when documents can be served, and who can serve them. When subpoenaing a witness or asking for documents to be produced for a case, the subpoena is generally issued by the court and served in line with that state and county's Rules of Civil Procedure. However, when the subpoena needs to be served in another state, the rules of that court may be different from the rules of the trial court.
When dealing with a foreign subpoena you have to follow a different process to make sure the document is served legal based on the rules in each state.
Most states have codes, rules, or legislation pertaining specifically to foreign subpoenas. Consult with your local association or conduct your own research to understand the laws in your state.
You will find that many states have adopted an act that makes the process for domesticating and serving a foreign subpoena uniform when working with other states that have adopted the act. To date, more than half of the states and districts in the U.S. have adopted the Uniform Interstate and International Depositions and Discovery Act.
The Uniform Interstate and International Depositions and Discovery Act (UIDDA) outlines a clear, consistent process for dealing with foreign subpoenas in the over thirty states that have adopted it.
If both states recognize the act, this is the process you will follow.
To start the process, the foreign subpoena will need to be submitted to the clerk of court in the state where the deposition, discovery, records request, or document retrieval needs to be conducted.
After receiving the foreign subpoena, the clerk will issue the subpoena for service in line with that court's rules and procedure.
The process server must follow the Rules of Civil Procedure of the state the subpoena is being served in. If, for example, you are serving documents in California for a case in Maryland, you would follow California's Rules of Civil Procedure when serving the subpoena.
Once the subpoena has been served, the deposition, testimony, producing of documents, records, and electronically stored information or other tasks must be obtained within the laws of the state in which discovery is being conducted. There may be specific limitations depending on the type of retrieval.
If one or both states involved don't recognize the UIDDA, the process will depend on which states are involved. In fact, domesticating and serving a subpoena in Texas for a case in Massachusetts would involve different particulars than if the case were in Texas and the subpoena was being served in Massachusetts.
Though the process will depend on the guidelines of the specific courts involved, here is a general outline of what will take place.
A petition for an out-of-state deposition, discovery, document retrieval, or other relevant tasks will lead to the trial court issuing a document to initiate the process. This petition or request for out-of-state service is usually in the form of an order, commission, stipulation, or letter.
Consult with the trial court and ask what specifically needs to be done to get the process started. The trial court will indicate what documents or petitions need to be submitted to get the process going, specific to whether you are in need of a deposition, testimony, document retrieval, or other evidence.
Next, you will need to apply to the court where the person or documents are to be subpoenaed and request for the local subpoena to be issued. The details will be specific to the case and circumstance, and in some scenarios, a licensed attorney will need to file a formal petition.
While in most scenarios you would follow the Rules of Civil Procedure for the state in which you are serving the subpoena, you will need to consult with both courts to determine who is allowed to serve the subpoena and through what means.
With the subpoena served legally you will be able to move forward with your deposition or discovery.
Taking a closer look at foreign subpoenas in the context of depositions, the below video discusses the Uniform Interstate and International Depositions and Discovery Act, how the process differs for states that do and do not recognize the act, and the importance of working with an experienced process server.
Video by Kern Legal Services
