Obtaining Out-of-State Third-Party Discovery: Where to Begin?

While there are some common methods and requirements for serving out-of-state subpoenas, states have their own rules. Some, including those addressed as examples here, have peculiar subpoena rules that may affect litigation strategy.

Common Methods for Serving Out-of-State Subpoenas

There are three main sources governing how one might serve a third-party subpoena in a different jurisdiction, (1) the Uniform Interstate Depositions and Discovery Act (UIDDA), (2) the Federal Rules of Civil Procedure (FRCP), and (3) a state’s long-arm statute or other statutory or common law authority.

• UIDDA: For cases pending in state courts, the UIDDA — a model act that has been adopted by 47 states and the District of Columbia — will likely govern third-party discovery. It provides a streamlined procedure for issuing and serving subpoenas for depositions and discovery in out-of-state cases. Under the UIDDA, a party seeking discovery from a third party in another state can submit a subpoena issued by the court where the litigation is pending to the clerk of the court in the state where the discovery is sought. The clerk will then issue a subpoena for service on the third party that incorporates the same terms and conditions as the original subpoena.

• FRCP 45: For cases pending in federal court, Rule 45 of the FRCP provides that a party seeking discovery from a third party in another state can issue a subpoena from the federal court where the litigation is pending or from the federal court for the district where the discovery is sought.

• Other State Laws: A particular state’s long-arm statute or other statutory or common law authority may provide an alternative or additional basis for serving a third-party subpoena in another state, especially if the UIDDA or the FRCP do not apply or are insufficient to address a particular situation. For example, some states have statutes that authorize their courts to issue subpoenas for out-of-state witnesses or documents in certain circumstances, such as when the witness or document is material and necessary for the case, when the witness or document cannot be obtained by other means, or when the witness or document is located within a certain distance from the state border. Some states also recognize the common law doctrine of comity, which allows their courts to issue subpoenas for out-of-state witnesses or documents as a matter of courtesy and reciprocity, subject to the discretion and jurisdiction of the courts in the state where the discovery is sought.

Examples of States With Notable Subpoena Rules

While the UIDDA, the FRCP, and a state’s long-arm statute or other authority may provide general guidance for serving a third-party subpoena in another state, some states have specific subpoena rules that may affect the process and outcome of discovery efforts. States with unusual or complex subpoena rules include Massachusetts and California, as outlined below:

• Massachusetts: Massachusetts has not yet adopted the UIDDA (though legislation has been proposed to do so) and instead has a unique procedure for serving third-party subpoenas for deposition or discovery in an out-of-state case. Under Massachusetts General Laws Chapter 223A, Section 11, a party seeking discovery from a third party in Massachusetts must first obtain a commission or letter rogatory from the court where the litigation is pending, authorizing the issuance of a subpoena in Massachusetts. The party must then file the commission or letter rogatory with the Massachusetts Superior Court, along with a motion for approval of the subpoena and a proposed subpoena. The motion must show that the discovery is material and necessary for the case, that the discovery cannot be obtained by other means, and that the discovery does not impose an undue burden or hardship on the third party. The Massachusetts Superior Court will then review the motion and the proposed subpoena, and may approve, modify, or deny the subpoena.

• California: California has adopted the UIDDA but has also imposed some additional requirements and limitations for serving a third-party subpoena for deposition or discovery in an out-of-state case. Under California Code of Civil Procedure Section 2029.100 et seq., a party seeking discovery from a third party in California must submit a subpoena issued by the court where the litigation is pending to the clerk of the California Superior Court in the county where the discovery is sought to be “domesticated.” The clerk will then issue a subpoena for service on the third party that incorporates the same terms and conditions as the original subpoena, except that the subpoena must also comply with California law regarding the form, content, and notice of the subpoena, the fees and expenses of the third party, the protection of privileged or confidential information, and sanctions for noncompliance.

Conclusion

Serving a third-party subpoena in a different jurisdiction requires careful attention to the laws and procedures of both the state where the litigation is pending and the state where the discovery is sought. If out-of-state testimony and/or documents must be obtained in litigation, an experienced attorney should advise on the best method and strategy for serving the subpoena, particularly due to variation in rules and requirements and the fluid nature of federal and state laws and practices.