Avoiding Procedural Potholes When Subpoenaing Out-of-State Nonparties
Ellis & Winters
Obtaining information from nonparties in a case can be riddled with procedural potholes. For state proceedings, issuing a subpoena to an out-of-state nonparty can be especially fraught with difficulties. The United States Supreme Court held long ago, in Minder v. Georgia, 183 U.S. 559, 562 (1902), that a state court does not have the power to compel nonparties “who are beyond the limits of the state” to respond to discovery.
Additionally, ethics opinions from multiple states have found that an attempt to convey an out-of-state subpoena as enforceable constitutes professional misconduct because the lawyer is engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See, e.g., Vermont Advisory Ethics Opinion 93-04; see also North Carolina 2010 Formal Ethics Opinion 2; Virginia Legal Ethics Opinion 1495. For these reasons, states have developed their own procedures and requirements for “domesticating” out-of-state subpoenas for in-state service. Previously, these procedures and requirements varied drastically from state to state, with some even requiring local counsel in the discovery state to file an action to establish jurisdiction over the nonparty.
In 2007, the Uniform Interstate Depositions and Discovery Act (UIDDA) was promulgated in an attempt to simplify and standardize the process. Today, 42 states have adopted the UIDDA. This article provides a step-by-step guide to issuing a subpoena pursuant to the UIDDA and highlights important considerations along the way.
Imagine you are representing a defendant in North Carolina and need to obtain relevant records from a nonparty witness in Virginia. You will need to take the following actions:
- Determine whether Virginia has adopted the UIDDA or whether it follows a different procedure.
Some states that have adopted the UIDDA, like Virginia, have added slight alterations. For instance, Virginia has added that a party requesting issuance of a subpoena must submit “a written statement that the law of the foreign jurisdiction grants reciprocal privileges to citizens of the Commonwealth for taking discovery in the jurisdiction that issued the foreign subpoena.”
- Prepare and execute a North Carolina subpoena duces tecum pursuant to Rule 45 of the North Carolina Rules of Civil Procedure.
The North Carolina subpoena should clearly state that it is not enforceable but is being provided for the purpose of obtaining a UIDDA subpoena.
- Prepare a non-executed Virginia subpoena complying with Virginia’s rules of discovery along with a letter to the clerk of court in the county where the records sought are maintained.
The Virginia subpoena should incorporate the terms of the North Carolina subpoena and list 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. Moreover, the letter to the clerk should request the clerk to file and issue the Virginia subpoena and notify the clerk that the Virginia subpoena is being sought pursuant to the Virginia statute (citing the appropriate statute or rule quoting the UIDDA). The letter may also instruct the clerk which documents to issue and which ones to endorse or file-stamp and return and whether service by sheriff is requested.
- Prepare any forms or cover sheets required by the Virginia court.
Some states have an application form or cover sheet to submit along with the subpoena documents that can often be located on the court’s web site. The clerk’s office will usually have a web page explaining the forms and procedures that should be consulted in preparing or sending a subpoena.
- Send all the materials – the executed North Carolina subpoena, the non-executed Virginia subpoena, the requisite form or cover sheet, and the letter to the clerk – to the clerk of court in the county where discovery is sought.
It is important to note that the materials must be sent to the clerk in the county where the discovery is sought to be conducted. Otherwise, the clerk will not issue the in-state subpoena.
- Serve the subpoena documents.
There are two optimal service options after the clerk has issued the subpoena. In accordance with the discovery state’s rules, the clerk may send the issued subpoena materials to a process server in that state or have the county sheriff’s department serve the materials. Either option should be specified in the letter to the clerk of court.
Utilizing a process server can be extremely beneficial and efficient. If the state’s rules allow, a process can deliver the materials to the clerk, wait for the clerk to return copies of the finalized materials, then turn around and serve the subpoena. This ensures timely service.
While the UIDDA eliminates the need to engage local counsel to help issue and serve an out-of-state subpoena, local counsel is likely necessary in certain instances. A request for the issuance of a subpoena under the UIDDA does not constitute an appearance in the courts of the state in which the record is maintained. Thus, if the nonparty refuses to respond to the subpoena or moves to quash or modify the subpoena, then local counsel may be needed. Any motion directly affecting the subpoena, such as a motion to quash, compel, or modify the subpoena, must be filed in and is governed by the rules of the state where the subpoena will be issued.
Another important consideration is whether the nonparty is an out-of-state corporation with a registered agent in the trial state. Only a handful of courts have addressed whether an attorney can compel an out-of-state corporation to produce records by serving the in-state registered agent instead of complying with the UIDDA. These courts have ruled that such service renders the subpoena unenforceable. The decisions hold that having a registered agent and doing business in a state does not necessarily obligate a nonparty corporation to produce records located outside the state. See, e.g., Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440 (Va. 2015); Ulloa v. CMI, Inc., 133 So. 3d 914 (Fla. 2013). For this reason, the safest option when subpoenaing an out-of-state corporation is to follow the discovery state’s UIDDA law.
Finally, a subpoena issued pursuant to a state’s UIDDA law may not compel the nonparty to appear for deposition in the trial state or to send the subpoenaed discovery to the trial state. Not only is the subpoenaed discovery governed by the laws of the discovery state, the discovery takes place in that state. For this reason, the subpoenaing attorney must name a location in the discovery state to depose the nonparty or where the nonparty is to send production, such as a court reporting agency.
Obtaining an out-of-state subpoena is not a straightforward process. However, with some care and attention to detail, the bumps in the road can be avoided.