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.
A man filed for divorce a year after he separated from his wife. He was represented by an attorney at various times during the divorce, but at the final hearing, held two years after he filed, he was unrepresented. The parties had been notified of the final hearing many weeks earlier. The wife, who had an attorney, had prepared for the hearing, and had witnesses ready to testify. The husband claimed he did not know what he was supposed to do. The court commented that because he was not represented by an attorney, the hearing would be “one-sided”. After the wife’s attorney requested that the hearing go forward, the court allowed testimony, but at the end of the hearing, ordered that the husband be allowed another 1/2 day to present additional evidence, with the hearing to be set several weeks later so that the husband could obtain an attorney.
A woman filed a relief from abuse petition and was granted a temporary order for relief from abuse. When the defendant was served, he filed a motion to modify the relief from abuse order, failing to provide a copy to the the woman or her attorney. As a result, he was given a hearing with two days notice to the plaintiff. The plaintiff and her attorney had to set aside other matters to prepare for the hearing. However, they were not prepared for the defendant’s motion because they were not provided a copy. When the court found out defendant had not provided a copy to the opposing party, the court commented that unrepresented parties sometimes do not understand the rules, and went ahead with the hearing.
A unrepresented man filed a motion with the court concerning a financial transaction involving persons not parties to the court proceeding. The court issued an ex parte order ordering the opposing party, who was represented by an attorney, to perform a task within a few hours; otherwise the transaction could be postponed, jeopardizing the transaction itself. The opposing party’s attorney had to drop everything to attempt to comply with the court’s order.
These three incidents happened recently before three different judges. In each of the cases the unrepresented parties were given consideration because they did not have an attorney. As a result, the represented party was penalized–either with onerous deadlines or with expensive and emotionally draining delays.
The courts tell unrepresented parties that they have the same duties as attorneys to understand the law and the procedures of the court. The reality is that often unrepresented parties are given more consideration than those parties who are represented by attorneys.
Clients notice. They rightly complain that it is fundamentally unfair to the party who has hired an attorney, and that they should not have to pay their attorney for the failure of the other side to properly follow court orders or understand the law.
I agree. When an unrepresented party is given special consideration, it dimishes the prestige of the court, in my opinion. Why? because whan a court treats one party differently than another, the message to litigants is that the rules can be bent, depending on the status of litigant. This message is often a shock to litigants who are unfamiliar with court processes. It also has the unintended effect of reducing the number of represented parties. To be sure, many parties are unrepresented in court because they cannot afford an attorney. But not all parties who can afford attorneys hire them to represent them in court. One reason may be that they believe they will be given a break if they do not have an attorney. The courts should disabuse any litigant of that belief at the beginning, by making sure unrepreseented litigants are required to follow law and procedure, just as those who are represented by an attorney must.
>During the recent debate in the Vermont legislature, a state representative asked for my ideas on how things might be improved. The following were suggestions which, although beyond the scope of the judicial reform bill, address some examples of extra legal expense and extra time in the system. Since I am most familiar with family court, I used examples from that area of the system:
1. At the moment, in a divorce proceeding, the court takes up the value of the marital estate closest to the date of the final hearing in order to make a distribution of the assets. Under the current circumstances, a contested divorce with significant assets may take two years to work its way through the system to a final hearing. Due to the time between the initial complaint and the final hearing, the spouse with the most assets has abundant opportunity to dilute assets, reduce business and employment income, and generally “game” the system in order to reduce liability when it comes to spousal support and the final distribution of assets.
In addition, specific information is needed to go to the case manager’s conference at the start of a divorce (a complete financial affidavit [Form 813], the last two years’ tax returns, four most recent paystubs, etc.) This information is the basis for temporary support, temporary child support, etc. Subsequently, with status conferences, various motion hearings, etc., there can be extensive discovery in the form of interrogatories and requests to produce, followed by intermittent requests to supplement financial and asset information. This type of repetitive discovery becomes very costly to both parties.
A solution to this problem might be to use the value of the marital estate at the time the initial complaint is filed as the baseline rather than the value closest to the final hearing. This may not be a popular approach, but it would probably cut down on the amount of attorney and court time in these situations.
2. Again – in both divorce and post-judgment situations in family court – the Form 813 is the anchor with which most cases are moored. The court would do well to insist that this affidavit – which is submitted under oath – be accurate and backed up with verifiable data. If at the outset the Form 813 was agreed to be accurate by the parties and the court, it would eliminate a great deal of unnecessary and repetitive discovery.
3. The family court uses Child Support Guidelines to determine how much a non-custodial parent must pay in child support. The use of this guideline helps to simplify this calculation, and deviations are permitted under various circumstances. Without such a guideline, child support matters would be much more drawn-out and there would be a great deal more litigation.
It has been suggested – and indeed there have been efforts to do so in Vermont – that Spousal Support Guidelines should also be developed. Some other states and jurisdictions have already tried this with varying degrees of success. Consistent use of such guidelines could reduce litigation in divorce because they would make it clear to stubborn spouses that no matter how much they may twist and turn in court, eventually they will be on the hook for a predictable amount of support and they are wasting time and money trying to evade their responsibilities.
4. Finally – and this observation applies more or less across the board – litigation and court time could be reduced if (a) courts are decisive when it comes to making decisions and (b) courts enforce both their rules and their orders, once made. If indecisive, courts open the door to abuse of the system, and such abuse wastes time and money. If one step toward reducing costs in other areas of government is to cut “waste” – surely one step that should be applied to the court system is to cut the wasted use of the court system for frivolous cases and pleadings.
In a nutshell, enforcing existing laws and court rules, not tolerating the waste of the system, and making full use of the existing resources might greatly reduce the need for reform.