A Primer On Uniform Interstate Depositions and Discovery Act of 2007
Most litigators at one point or another will need to conduct a deposition of a witness or discover materials in another state. Prior to the promulgation of the Uniform Interstate Depositions and Discovery Act, discussed below, out-of-state discovery involved complicated procedures that differed from state to state and often required retaining local council just for the purpose of obtaining and serving a subpoena. In some states, a party was required to file the notice of deposition in the trial state and then serve the witness with a subpoena under the law of the trial state. Other states required that a notice of deposition be shown to the clerk or judge in the discovery state, after which a subpoena would automatically issue. Still other states required a letter rogatory or a commission requesting the trial state to issue the subpoena, and about 20 states required that an attorney in the discovery state file a miscellaneous action to establish jurisdiction over the witness so that the witness can then be subpoenaed.
While two other attempts had previously been made in drafting a uniform law on handling out-of-state discovery—the Uniform Foreign Depositions Act (1920) and the Uniform Interstate and International Procedure Act (1962)—neither was well-received and adopted by the states.
In 2007, the National Conference of Commissioners on Uniform State Laws, now known as the Uniform Law Commission, promulgated the Uniform Interstate Depositions and Discovery Act (“UIDDA”). UIDDA sets forth an efficient and straightforward procedure for litigants to depose out of state individuals and for the production of discoverable materials that may be located out of state. Most states, including California, Colorado, Arizona, Nevada, and New Mexico, have adopted the UIDDA, either in whole or in part, which has substantially simplified out-of-state discovery in those states.
Under UIDDA, to request issuance of a subpoena for discovery in support of action pending in another state (trial state), a party must submit a (1) request for issuance of a subpoena (usually a standard court form) attaching the foreign subpoena, or other similar document issued in the trial state, such as an order of the court allowing discovery; and (2) a subpoena prepared according to the procedures of the discovery state incorporating the terms of the foreign subpoena and containing 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. The clerk of the court, or, in some cases, a judge, issues the subpoena which is then served under the rules of the discovery state. Under UIDDA, a request for the issuance of a subpoena does not constitute an appearance in the courts of the discovery state.
There are several important points to remember regarding UIDDA. First, it does not affect the procedure in trial states. In other words, if the trial state requires a letter rogatory before out-of-state discovery may take place, the enactment of UIDDA by that state or by the discovery state does not change that requirement. UIDDA governs only the procedure in the discovery state: the state where the deposition or the discovery of materials will take place. Second, UIDDA only governs subpoenas issued by a court of record, including attorneys authorized to issue subpoenas under the court’s authority in the trial state. Thus, UIDDA does not apply to subpoenas issued in arbitrations, administrative hearings, or other similar proceedings where subpoenas are commonly issued. The Official Comment to UIDDA states that the Commission concluded that extending the Act to such proceedings would be a significant expansion that might generate resistance to the Act. Third, it is essential that a practitioner checks the statutes of the discovery state closely—even in those states that have adopted the UIDDA as a whole, there may be additional or different procedural requirements that are not present in UIDDA, as, for example in California, where, as an alternative to obtaining a subpoena under UIDDA, a subpoena may be issued by any attorney licensed to practice in California as long as the subpoena incorporates the terms of the foreign subpoena and contains 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. UIDDA does not contain such a provision. Finally, any discovery disputes, including disputes regarding privilege issues, are governed by the rules of the discovery state.