The Law Firm of Bucknam Black Davis PC

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.





Called as a witness in court? Here are some tips to help you through the ordeal

Being called as a witness in court can be stressful. People who have seen courtroom dramas on television and in the movies fear that the opposing lawyer will trip them up, twist their words, or make them look foolish. In my 32 years experience I have found that does not happen to an honest witness who understands his or her job is just to answer the questions. If you remember that it is the attorney’s job to make sure all of the evidence is presented, and it is your job just to answer the questions, you will be fine.

Here are some tips that I give my clients and witnesses. These may help you if you are called as a witness:

Getting over the jitters: I will go over your testimony and possible cross examination questions.  That should help you feel less nervous. Going over these instructions should also help.  If you still feel uncomfortable, I recommend you go to court ahead of time, find out what courtroom you will be testifying in, and watch the proceedings.  I can help you make arrangements to visit the court at an appropriate time if you wish.

Dress: It is important that you dress appropriately for court. The clothes you wear should indicate that you consider this an important matter, and that you have respect for the judicial system.

  • Men should wear a shirt with a collar and slacks. No jeans or t-shirts. Women should wear dress shirts and slacks or skirt, or dresses. Avoid too much make-up.
  • Everyone should be clean and neat. Please shampoo your hair the night before, or the morning of your testimony. Men should have their side-burns and mustaches trimmed, as well as a neat haircut. Both men and women should have their hair combed so it is out of their eyes.
  • Do not wear sandals or loud shirts or loud blouses.

Courtroom conduct: When you are sitting in the courtroom, please conduct yourself with dignity. Never make faces or remarks when someone else is testifying. Do not roll your eyes, shake your head, put your head in your hands, or make any other gesture that is in response to a witness’s testimony. The judge and jury hate to see people in the court room do such things, and they frequently misinterpret your body-language.

When you sit in the witness box, sit in a relaxed position, but do not slouch. Put your hands in your lap; do not fold them across your chest.

Tips when testifying:

  • TELL THE TRUTH: The one most completely devastating thing that can happen is for you to lie regarding some element of the case. You may be assured that the other side will investigate thoroughly and discover the untruth. It only hurts the case if you do not tell the truth
  • BE BRIEF: Listen to each question carefully, answer it completely and honestly but do not over-answer it. That is, do not go elaborate unless some elaboration is necessary to clarify your answer, and do not go on to another topic.
  • LISTEN TO THE QUESTION AND ANSWER ONLY THE QUESTION.   Do not second guess the attorney who is asking you the questions. Just remember that you have two strikes against you when you are on the witness stand: you are not familiar with the system, and you do not know the questions the attorney is going to ask, or why he or she is asking them–so second guessing is a loser’s game. Do not worry whether your answer is helping your case or whether you are being consistent; my job is to worry about that. All you have to do is tell the truth.

I have been practicing in trial courts since 1979. I have never seen an honest witness fooled by a lawyer.

  • Do not ask the cross-examining lawyer a question. It shows belligerence. For example, a witness might ask, “Why is this relevant?” Do not ask such questions. It only gives the lawyer an opportunity to make a remark about your testimony and it irritates the judge and jury. Also, when you ask a question, it appears you are trying to avoid answering the lawyer’s question. There is only one exception: you must ask the attorney to repeat or rephrase the question if you do not hear the question, or do not understand the question.
  • Be courteous and attentive to the opposing attorney. Under no circumstances should you get mad or lose your temper. I will be there to protect you if you are being mistreated. It helps to remember the opposing attorney is just doing his or her job.
  • Do not look to me for help in answering the questions. I will object if you are asked an improper question.
  • Do not testify to what someone has told you unless you are asked specifically about conversations with others.
  • If you do not understand a question, say so. I have seen witnesses who are concerned that they look stupid, so they answer a question they do not understand. That could be a disaster
  • If you do not hear a question, say so.
  • If you do not know the answer, or you do not remember, say so. However, do not use, “I don’t remember” as an excuse not to answer. If you know the answer, answer the question.
  • Do not guess at the answer to any question. Be especially careful where the question deals with dates, time, speed, or distance. You may estimate these if you are able but do not guess.
  • Do not be afraid to admit that you have discussed your testimony with an attorney. Remember, that is the truth and you always tell the truth.
  • Some people think they have to contradict the opposing attorney as much as possible. Others think they should agree with the opposing attorney as much as possible so that they appear unbiased. Do not try to be either too agreeable or too disagreeable when you are being cross-examined. JUST TELL THE TRUTH.
  • Do not answer the question before the lawyer finishes asking. You might be tempted to hurry, because it is not pleasant to be cross-examined, and you want to get it over with. Take your time, and listen to the question carefully. Do not let the lawyer hurry you, either. Go at your own pace.
  • Remember, I will have a chance to ask you questions again after the attorney cross-examines you. So, if there is anything that I feel has not been adequately explained in cross-examination, I will give you a chance to explain it.
  • If you have been convicted of a crime, the other side may be able to bring it up during cross-examination. Let me know ahead of time, and I will file a motion to try to keep it out. Please do not surprise me on this.

Please remember: the other side may call you to testify before I do. They can.  Do not worry about that; just keep in mind the instructions that I have given you.

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