How to Handle an Out-of-State Deposition

From time to time, attorneys must take the deposition of a witness located outside of their own state.  The Litigation Section of the Utah State Bar has an article which gives the following step-by-step of how to handle such situations:

1. Determine which court has jurisdiction over the deponent and then call the clerk of that court and ask how that court requires an out-of-state attorney to proceed in taking the deposition of a witness in that court's jurisdiction.
2. Determine whether you will need to issue a Subpoena to compel the deponent's attendance at the deposition or whether he/she will appear voluntarily.  If you decide to issue a Subpoena, you must determine how to get a properly issued subpoena that will be enforceable against the out-of-state deponent.
3. If your case is in Federal Court, the attorney can likely issue the Subpoena himself.  However, the process of issuing Subpoenas in state court falls into four different categories: Uniform Foreign Depositions Act States; Notice / Agreement States ; "Letters Rogatory" States; and "Miscellaneous Action" States.  (Note: These are discussed in greater detail below).
   
4. Make the logistical arrangements necessary to ensure your deposition will run smoothly, such as book travel arrangements, determine whether your client or a client representative will attend the deposition with you, locate suitable accommodations, and coordinate with the witness's local counsel, if any, and opposing counsel if he or she wishes to attend the deposition.
5. Schedule the location for the deposition and arrange for a court reporter to be present.  It is also advisable to discuss  any special deposition requirements, like videotaping or simultaneous computer transcription, with your court reporter to avoid any unwanted surprises later.
6. If you are also issuing a subpoena duces tecum, try to arrange for production of the documents well before the date of the deposition, so that you will have time to review the documents prior to the deposition.

As referenced above, states fall into four categories with regard to their Subpoena requirements:

• Uniform Foreign Depositions Act States 

The Uniform Foreign Depositions Act generally provides, with some variations among the states that have adopted it, as follows:

Whenever any mandate, writ or commission is issued from any court of record in any foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness in this state, the witness may be compelled to appear and testify in the same manner and by the same process as employed for taking testimony in matters pending in the courts of this state.

The Uniform Depositions Act has been adopted by thirteen jurisdictions: Florida, Georgia, Louisiana, Maryland, Nevada, New Hampshire, Ohio, Oklahoma, South Dakota, Tennessee, Virginia, the U.S. Virgin Islands, and Wyoming.2 Moreover, several other states that have not officially adopted the Uniform Foreign Depositions Act have enacted similar statutes: California, Nebraska, New York, Rhode Island, South Carolina, and Texas.

To take a deposition in one of these states, you simply sign and file in the witness's state the same Notice of Deposition you use in deposing a witness located in Utah. You likewise issue the same subpoena you use for a Utah deposition. You must arrange valid service of that subpoena on the witness under Utah law, which means finding a suitable agent to personally serve the subpoena on the witness. Once again the internet comes to the rescue. A good resource for locating a process server in another state is the National Association of Process Servers.

Once you have issued your subpoena and served the witness, you should, if practicable, make contact with the witness (unless, of course, the witness is represented by counsel) and determine whether the witness will attend the deposition. If you have reason to believe the witness will not attend, despite service of the subpoena, prudence dictates that you make contact with the court in the home state of the witness and prepare to file a motion to compel. While these Uniform Foreign Deposition Act states will enforce your subpoena, you will probably still need to hire local counsel to bring the enforcement proceeding.

The advantages of proceeding in a Uniform Foreign Depositions Act state are obvious: ease of administration, low cost to clients, and the foreign court's promise to enforce your subpoena. With a reluctant witness, however, you may still need to hire local counsel to get the foreign court to enforce your subpoena.

• Notice / Agreement States

Fourteen jurisdictions have enacted court rules or statutes that allow either a judge or the clerk of court to issue a subpoena based upon only a Notice of Deposition filed in the trial state or an agreement of the parties that the witness shall be deposed. Those states are: Alabama, Delaware, the District of Columbia, Idaho, Minnesota, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oregon, South Carolina, Tennessee, and Utah.

In these states, it may or may not be necessary to officially petition the witness's state court (see infra). In any event, to take a deposition of a witness in one of these states, you should plan to file your Notice of Deposition with the Utah court, then provide a copy of that Notice to the witness's home state court. In states that do not require that you petition the court for issuance of a subpoena, you may be able to simply write a letter to the clerk of court or the court itself, enclosing a copy of the Notice of Deposition (or of the agreement of the parties to take the witness's deposition) and ask that the clerk or court issue the necessary subpoena.

Obviously, once the subpoena is issued, you proceed as described above, obtaining proper service of process on the witness, either under your state's law or under the laws of the witness's home state. And again, if the witness is reluctant, you will need to hire local counsel to ask the court to enforce the subpoena.

• "Letters Rogatory" States

While only Alabama, Arkansas, and Kentucky have statutes or rules in place explicitly requiring out-of-state attorneys to obtain a writing from the trial state court asking the home state court to issue a subpoena, several states' clerks and attorneys believe that this procedure is still required in their state. For example, sometimes you may be required to get a judge in your state to sign a "Commission to Take Out-of-State Deposition" to be filed in another state's court by an attorney admitted in that state, before that court will issue a subpoena, despite the fact that the other state may have adopted a liberal out-of-state depositions statute.

When taking a deposition in one of these states, you must obtain a writing from your state's court in which your action is pending, addressed to the witness's home state court, asking that court to issue a subpoena for your deposition. These documents are sometimes called "Letters Rogatory," sometimes called "Commissions," or sometimes simply "Request to Issue Subpoena."  Your state's trial judges are generally amenable to signing these requests.

The advantage to this method is that, because you have a direct communication from your state's judge to the out-of-state court, you should not have to hire an attorney who is licensed to practice law in the state where your deponent resides, at least not until you need to enforce the subpoena upon a reluctant witness. Until then, you can simply send the Letters Rogatory or other similar document directly to the out-of-state court, preferably with a cover letter explaining what you would like and perhaps a draft subpoena for the court to issue. Working closely with the clerk of the out-of-state court is crucial to making this process work smoothly.

And again, once your subpoena is issued, you arrange for service on the witness, contact the witness to determine whether the witness will attend the deposition, and hire local counsel to enforce the subpoena if the witness is reluctant.

• "Miscellaneous Action" States

At least 20 states require that you hire an attorney licensed to practice law in that state to file a miscellaneous action in the court with jurisdiction over your deponent. These states are: Alabama, Alaska, Arizona, Arkansas, Connecticut, the District of Columbia, Hawaii, Illinois, Kansas, Kentucky, Michigan, Missouri, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, Vermont, Washington, and West Virginia. 

Once that action is filed, the attorney you have hired must in most cases file a motion asking the court to issue a subpoena to your deponent. You can often save money here by drafting the pleadings yourself and having out-of-state counsel simply review, sign, and file them.

When trying to locate out-of-state counsel, younger associates at medium-sized litigation firms in the same city as the court can be particularly helpful.  Young associates often are willing to take the time to assist an out-of-state attorney in the hopes of someday obtaining referral business. The internet is, once again, a good source for locating these young associates.

Obviously, the disadvantage to this method is the time and expense required to locate and hire out-of-state counsel, as well as the time involved in filing the miscellaneous action and motion and getting an order signed and subpoena issued. Nevertheless, if the state in which your deponent resides requires this procedure, you and the client will have to make sure the deposition sought is worth the time and expense involved.

Source:  "How to Take an Out-of-State Deposition" by Victoria C. Fitlow, published in the Utah Bar Journal.  Thanks to Dave Stratton of the Insurance Defense Blog for his post about this article.