The last frontier: Seeking out-of-state discovery in state court

A party in litigation often needs to obtain discovery from a witness located out-of-state. In federal court, Federal Rule of Civil Procedure (FRCP) 45 uniformly governs the process for issuing and serving a subpoena on an out-of-state witness nationwide. In state court, by comparison, it’s the Wild West. The very first step is often the most daunting: what law applies?

Attorneys are well versed in their own state’s procedure for subpoenaing a non-party. However, attorneys often do not devote any significant time to researching a foreign state’s procedure for recognizing and enforcing that subpoena. (An attorney may prefer to cross his fingers and hope the witness just complies.) But with just a few basic steps, an attorney can conquer this frontier as a lawman, not an outlaw.

The first step is to understand that there is only one of three possibilities for the applicable procedure: the Uniform Interstate Discovery and Depositions Act (the UIDDA), the Uniform Foreign Depositions Act (the UFDA), or a non-uniform state procedure.

The broad-brush procedure under each of these options is typically straightforward:

• Under the UIDDA, an attorney presents an in-state subpoena directed to the out-of-state witness to the appropriate court clerk in the state where the witness is located. The clerk then issues an identical subpoena in the proper form for that state.
• Under the UFDA, an attorney must seek a deposition (either with or without documents) and obtain an order authorizing the deposition from the court where the action is pending. The attorney then takes the order to an attorney or clerk in the foreign state to issue the subpoena in the proper form for that state.
• For the handful of states with a non-uniform procedure, the options range from simply presenting a clerk with a notice of deposition to opening up a miscellaneous action and obtaining a court order. Regardless of the procedure, the rules governing it are relatively simple.

Service of the subpoena must comply with the foreign state’s rules and procedures on service of process. Although that may sound intimidating, in-hand delivery by a sheriff or process server will nearly always suffice.

Finally, attorneys must account for variations state by state. For example, some UIDDA states allow an attorney to retain local counsel in the foreign state to issue the subpoena instead of the court clerk.

This brings us back to that first, most daunting question: what law applies? The answer can be found in Practical Law’s Interstate Discovery Chart. This chart identifies the key statutes and rules in every state. With access to this chart, only one question remains: will counsel proceed as Wyatt Earp or Billy the Kid?