Often, when attorneys are faced with obtaining out of state discovery, they hesitate to do so unless it is absolutely critical (given the cost and time that has historically been involved in the process). Over the past decade, the barriers that existed in order to gain ability to obtain discovery from out of state third-parties have largely eroded. When faced with obtaining discovery from a third-party located in a foreign state, the first question attorneys should ask is whether the foreign state has adopted the Uniform Interstate Deposition and Discovery Act (UIDDA). Since 2007, thirty-nine states, plus the District of Columbia and the U.S. Virgin Islands, have adopted the UIDDA. The only states that have not adopted it are Wyoming, Nebraska, Missouri, Texas, Oklahoma, Florida, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Maine (although Oklahoma has a bill pending).
The UIDDA provides a cost-effective way to obtain depositions and other discovery from out of state third parties. It is important to review the UIDDA as adopted by the state in which you seek discovery because it slightly varies from state to state. Importantly, the UIDDA provides that when an attorney seeks the issuance of a subpoena in a foreign jurisdiction, it does not constitute a court appearance, thus you do not need to hire local counsel. The UIDDA allows out-of-state licensed attorneys to submit valid subpoenas from the jurisdiction where the matter is pending with the clerk of the foreign court and directs the foreign clerk to issue a subpoena. This is a much more streamlined process than having the court where the action is pending issue, an order which grants a petition for issuance of letters rogatory, retaining local counsel, and then having local counsel commence an action in the foreign jurisdiction to have the court issue the subpoena.
Although the UIDDA dispenses with the requirement that you retain local counsel in the foreign deposition, it may be advisable to do so, especially when time is of the essence. Local counsel can help guide you through the state specific requirements governing subpoenas, as Section 5 of the UIDDA permits the foreign jurisdiction to impose their rules of civil procedure upon the party issuing the subpoena. For example, Pennsylvania Rule of Civil Procedure 4009.21 requires the party issuing a subpoena for the production of documents to give 21 days notice, which is a requirement that many out of state attorneys could easily overlook, leading to delays caused by motion practice. Local counsel can also help you work through the quirks of local practice and more efficiently attend any hearings on petitions relating to any challenges to the subpoena, or to enforce the subpoena. Thus, it is often advisable to retain local counsel to provide an hour or two of assistance in navigating the local rules, rather than trying to get up to speed with the local and state rules governing the issuance of subpoenas, as well as the unwritten rules governing civil practice in the foreign jurisdiction.
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Ryan Boland is a principal attorney who represents corporations, financial institutions, and individuals in the areas of complex commercial litigation, corporate litigation, and banking law. Mr. Boland also serves as outside general counsel to owner managed businesses. Mr. Boland has extensive experience in the areas of real estate litigation, employment litigation (including prosecuting and defending restrictive covenants), as well as providing general corporate and real estate advice. Mr. Boland also handles intellectual property law cases, including preparing, filing, and prosecuting federal trademark applications and arbitrating Uniform Domain-Name Dispute Resolution Policy (UDRP) disputes.
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