Foreign subpoenas are still often a foreign concept
March 18th, 2011
Trial lawyers in the Washington, D.C. metropolitan area soon realize that almost every case can require discovery across jurisdictional boundaries. For cases where there is diversity or federal question jurisdiction, removal to federal court makes discovery easier. But when removal is not an option, the Uniform Interstate Deposition and Discovery Act (UIDDA) steps in to relieve (some of) the burden.
UIDDA is a short act that streamlines the process for obtaining subpoenas in foreign jurisdictions by eliminating the need to open a miscellaneous matter with the court. Also, a request for a foreign subpoena under UIDDA no longer constitutes an appearance in court. Accordingly, UIDDA has the added benefit of saving clients the cost of opening a matter and retaining local counsel.
Under UIDDA, one can, in theory, simply present the Clerk of the Court for the area where discovery is sought to be conducted (the discovery state) with a completed subpoena issued from the state where the action is pending (the foreign subpoena). The Clerk then issues a subpoena from the discovery state using the information on the foreign subpoena and the subpoena can be served by any means of permissible service in the discovery state.
UIDDA has now been adopted by the District of Columbia, Virginia, Maryland and Delaware, but it is not as uniform as its name might suggest.
Under the Virginia Uniform Interstate Deposition and Discovery Act, Va. Code secs.8.01-412.8 through 8.01-412.5, the 'privilege' of the simplified process only applies "if the jurisdiction where the action is pending has enacted a similar privilege to persons in [Virginia]." This means that the UIDDA procedure is only available if the litigation is pending in a jurisdiction that follows UIDDA or one of its predecessors such as the Uniform Foreign Depositions Act. For enforce this provision, Va. Code sec. 8.01-412.10 requires a completed subpoena from the litigation state as well as "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." In addition, Virginia clerks request a Virginia State Foreign Subpoena form completed without signature.
We have recently had an opportunity to request foreign subpoenas in the Circuit Courts for Spotsylvania and Fredericksburg, Virginia. All of the requested subpoenas were issued with nominal fees and served by the respective Sheriff without difficulty.
The Clerk's Office of the Circuit Court for Fairfax County, Virginia, has published a guide to the implementation of UIDDA in that court, and the same procedures will probably work in most Virginia Circuit Courts. All courts in jurisdictions that have adopted UIDDA should promulgate similar guides, in the interests of judicial economy and the sound administration of justice.
The District of Columbia has adapted UIDDA at D.C. Code sec. 13-441 through 13-448. Though the language of The D.C. UIDDA mirrors the model language, the court stated in Charca-Lupaca v. Maza, D.C. Super. Ct. No. 2010 CA 6934 2 (Daily Washington Law Reporter, Vo. 138, No. 252, Page 2669), that the subpoena from the litigation state must be accompanied with a completed subpoena for the District of Columbia. The Court further cautioned that an exception to the streamlined process of issuance of subpoenas under UIDDA exists for medical records. Subpoenas requesting the production of medical records that fall under D.C. Code 14-307 will not be issued until the party requesting the documents appears before the court and makes the required showing that the records should be produced.
Maryland and Delaware have adopted UIDDA with few changes or modifications. See Md. Courts & Judicial Procedure, secs. 9-401 - 9-407, and Del title 10, section 1, ch 43, sec. 4311. Despite Maryland's early adoption of UIDDA, Maryland clerks have been slow to embrace the Act.
We have had mixed success requesting subpoenas under UIDDA in Maryland. Our request to the Circuit Court for Baltimore City was rejected because the case number was missing and they required "something certified." This rejection due to a missing case number seems to indicate that Baltimore City continues to require a miscellaneous matter. The Circuit Court for Montgomery County has accepted the request for a foreign subpoena, but has requested an $80.00 filing fee which is the same fee as opening a miscellaneous matter.
In short, the UIDDA is a vast improvement over the days of appointing commissioners to issue subpoenas in foreign jurisdictions, but functionally, some of the wrinkles remain. Because not all Courts appear to be following UIDDA, the best practice is always to call the Clerk of the discovery jurisdiction and follow the procedures they prescribe. Those procedures may be far more complicated than required by UIDDA, but they are more likely to result in a timely foreign subpoena.
UIDDA is a short act that streamlines the process for obtaining subpoenas in foreign jurisdictions by eliminating the need to open a miscellaneous matter with the court. Also, a request for a foreign subpoena under UIDDA no longer constitutes an appearance in court. Accordingly, UIDDA has the added benefit of saving clients the cost of opening a matter and retaining local counsel.
Under UIDDA, one can, in theory, simply present the Clerk of the Court for the area where discovery is sought to be conducted (the discovery state) with a completed subpoena issued from the state where the action is pending (the foreign subpoena). The Clerk then issues a subpoena from the discovery state using the information on the foreign subpoena and the subpoena can be served by any means of permissible service in the discovery state.
UIDDA has now been adopted by the District of Columbia, Virginia, Maryland and Delaware, but it is not as uniform as its name might suggest.
Under the Virginia Uniform Interstate Deposition and Discovery Act, Va. Code secs.8.01-412.8 through 8.01-412.5, the 'privilege' of the simplified process only applies "if the jurisdiction where the action is pending has enacted a similar privilege to persons in [Virginia]." This means that the UIDDA procedure is only available if the litigation is pending in a jurisdiction that follows UIDDA or one of its predecessors such as the Uniform Foreign Depositions Act. For enforce this provision, Va. Code sec. 8.01-412.10 requires a completed subpoena from the litigation state as well as "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." In addition, Virginia clerks request a Virginia State Foreign Subpoena form completed without signature.
We have recently had an opportunity to request foreign subpoenas in the Circuit Courts for Spotsylvania and Fredericksburg, Virginia. All of the requested subpoenas were issued with nominal fees and served by the respective Sheriff without difficulty.
The Clerk's Office of the Circuit Court for Fairfax County, Virginia, has published a guide to the implementation of UIDDA in that court, and the same procedures will probably work in most Virginia Circuit Courts. All courts in jurisdictions that have adopted UIDDA should promulgate similar guides, in the interests of judicial economy and the sound administration of justice.
The District of Columbia has adapted UIDDA at D.C. Code sec. 13-441 through 13-448. Though the language of The D.C. UIDDA mirrors the model language, the court stated in Charca-Lupaca v. Maza, D.C. Super. Ct. No. 2010 CA 6934 2 (Daily Washington Law Reporter, Vo. 138, No. 252, Page 2669), that the subpoena from the litigation state must be accompanied with a completed subpoena for the District of Columbia. The Court further cautioned that an exception to the streamlined process of issuance of subpoenas under UIDDA exists for medical records. Subpoenas requesting the production of medical records that fall under D.C. Code 14-307 will not be issued until the party requesting the documents appears before the court and makes the required showing that the records should be produced.
Maryland and Delaware have adopted UIDDA with few changes or modifications. See Md. Courts & Judicial Procedure, secs. 9-401 - 9-407, and Del title 10, section 1, ch 43, sec. 4311. Despite Maryland's early adoption of UIDDA, Maryland clerks have been slow to embrace the Act.
We have had mixed success requesting subpoenas under UIDDA in Maryland. Our request to the Circuit Court for Baltimore City was rejected because the case number was missing and they required "something certified." This rejection due to a missing case number seems to indicate that Baltimore City continues to require a miscellaneous matter. The Circuit Court for Montgomery County has accepted the request for a foreign subpoena, but has requested an $80.00 filing fee which is the same fee as opening a miscellaneous matter.
In short, the UIDDA is a vast improvement over the days of appointing commissioners to issue subpoenas in foreign jurisdictions, but functionally, some of the wrinkles remain. Because not all Courts appear to be following UIDDA, the best practice is always to call the Clerk of the discovery jurisdiction and follow the procedures they prescribe. Those procedures may be far more complicated than required by UIDDA, but they are more likely to result in a timely foreign subpoena.
