A new and nifty way to obtain discovery out of state–with a caveat

As those of you who have practiced for many years know, it has been nearly impossible to obtain out of state discovery in a civil case. In order to obtain discovery, a litigant was required to obtain an order from a court in their home jurisdiction, file the order with the foreign jurisdiction and request the order be enforced. The litigant would be forced to hire an attorney licensed to practice in the foreign jurisdiction to enter their appearance to enforce theVermontorder. For clients with limited funds, this was not a practical way to obtain discovery.

Today, this rule can seriously restrict the obtaining of discovery because of our mobile and internet culture. Many litigants now have out of state financial accounts or own out of state assets. It is not unusual, particularly if litigants reside near a state border, for a litigant to hire out of state accountants, bookkeepers, or counselors. Those experts have not been available for deposition unless the parties agree, or a litigant goes through the process of obtaining an order in their home state to be enforced in the foreign jurisdiction.

Now, under the Uniform Interstate Depositions and Discovery Act (UIDDA), discovery is much easier to obtain. In 2011,Vermontincorporated this Act in VRCP 45 (Subpoenas). The Act provides that when a jurisdiction adopts the provisions of the Act, its litigants can use the Act’s provisions in the foreign states where the Act has also been adopted. As of 2011, the following states, other than Vermont, have adopted the Act: California, Colorado, District of Columbia, Delaware, Idaho, Indiana, Kansas, Kentucky, Maryland, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, South Carolina, Tennessee, Utah, Virgin Islands and Virginia.

South Dakotaadopted the Act as of July 1, 2012, andGeorgiaandAlabamahave adopted the Act effective January 1, 2013.MaineandArkansashave adopted similar rules, but apparently only in guardianship proceedings.

Rule 45 states as follows:

“Issuance of Subpoena for Interstate Depositions and Discovery.

(A) To request issuance of a subpoena under this rule, a party must submit a foreign subpoena to the clerk of court in the county in which discovery is sought to be conducted. A request for the issuance of a subpoena under this rule does not constitute an appearance in the courts of this state.

(B) When a party submits a foreign subpoena to a clerk of court, the clerk shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(C) A subpoena under subparagraph (B) must:

(i) conform to the requirements of Rule 45 and other applicable provisions of these rules, but may otherwise incorporate the terms used in the foreign subpoena so long as they conform to these rules;

(ii) advise the person to whom the subpoena is directed that such a person has a right to move in the Vermont court under Rule 45(c) for an order to quash or modify the subpoena; and

(iii) contain or be accompanied by 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.

(4) Service of Subpoena. A subpoena issued under paragraph (3) must be served in compliance with Rule 45(b), except that the officer or individual responsible for service shall not return a certificate of service or affidavit to the court that issued the subpoena. Instead the officer or individual responsible for service shall deliver a certificate of service or affidavit to the party who requested the subpoena.

(5) Deposition, Production, and Inspection. Rules 45(a), 45(b), 45(d) apply to subpoenas issued under paragraph (3).

(6) Application to Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under paragraph (3) must comply with Rule 45(c) and be submitted to the court in the county in which discovery is to be conducted.”

Thus, if a litigant wants to subpoena documents in a foreign jurisdiction which has adopted provisions of the Act, he or she need only file the subpoena with the court clerk in the jurisdiction where the person subpoenaed resides. Moreover, because the rule indicates that such a provision does not constitute an “appearance”, it is reasonable to conclude that an attorney filing the subpoena in a jurisdiction where the attorney does not have a license to practice would not be violating the rule against unauthorized practice of law.

The matter becomes more complicated however, if the person subpoenaed moves to quash the subpoena or requests a protective order in the foreign jurisdiction, or if the person who issued the subpoena seeks to enforce it in a foreign jurisdiction. I have found only one jurisdiction which addresses this issue:Utahhas specifically stated in its statutes that, other than filing a subpoena with a court clerk inUtahunder the provisions of the Uniform Interstate Depositions and Discovery Act, any other action by an attorney not licensed inUtahwould be considered unauthorized practice of law.

Utah’s statute reflects what the courts would likely rule in the other states regarding any actions other than filing a subpoena. If an attorney needed to defend the issuance of a subpoena, or needed to enforce the subpoena in a foreign court, then it is logical to assume that the attorney would need to be licensed to practice in that state.

Thus, if the party subpoenaed complies with the subpoena and does not challenge it in a foreign jurisdiction, no outside counsel licensed in the foreign jurisdiction would be necessary, saving litigants additional expense. However, if the subpoena requires court intervention, then counsel in the foreign jurisdiction would need to appear.

This new Act provides an easier and less expensive way to obtain discovery. Its limitation is that if the discovery is contested in any way, then out of state counsel must be hired. One would hope that, once this Act is more generally implemented, the lessons derived from the implementation of the Act would point toward ways of making it easier to obtain contested discovery out of state.