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So it's finally happened. That big case you've been handling for the last year has come to the end of written discovery, and now you've got to take 100 depositions in the next
two months. "No problem," you say. "Uh-oh," says your paralegal. "What?" "Fifty of these depositions are of people who don't live in
Utah." So now what do you do? Luckily, you just read an article in the Utah Bar Journal that gave you all the resources and ideas you'll need to conduct those
out-of-state depositions without a hitch.
I. Where to Start.
Whenever you need to depose an out-of-state witness, you have two main problems: how to get proper service of process, and how to make sure the
deposition is properly conducted and recorded. The first step is always to 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.
Your best chance of finding the out-of-state court with proper jurisdiction and then finding the clerk's phone number is, without a doubt, the internet. Using the witness's
address, determine the county in which the witness is located. MapQuest is a good internet source for this information (http://www.mapquest.com). Once you know the state and
county in which your witness resides, you can locate the appropriate court.
Each of the fifty states maintains a website pertaining to its court system. You can find all of these sites gathered in one convenient location at http://www.courts.net. Once
you have found the court with proper jurisdiction over your deponent and the phone number for the clerk of that court, you can call the clerk to find out how that court
requires you to proceed.
II. Issuance of Subpoena.
Having a subpoena issued to your out-of-state deponent is crucial if you want to be able to force that deponent to show up for the
deposition. Of course, you can always try contacting the individual directly and asking them to accept a Utah subpoena and/or agree to appear at a designated time and place.
This will work if you have a cooperative deponent, but you will have no power to command that deponent to appear, nor will you have any threat of sanctions if they fail to
appear.
Unlike the Federal judicial system, where any attorney admitted to practice before a Federal court can issue a subpoena to a witness located in any Federal district, attorneys
licensed in one state are not able to issue subpoenas in other states. In fact, unlike Utah, attorneys in many states cannot issue subpoenas at all. Therefore, your first step
is to determine how to get a subpoena issued that will be enforceable against the out-of-state deponent.
While each state has its own peculiar requirements, their systems generally fall into four categories. The first group of states will allow you to serve (and, more importantly,
will enforce) a subpoena issued by the Utah court. The second group of states requires that you simply provide a copy of your Notice of Deposition or evidence of an agreement
of the parties that the witness shall be deposed, and request that a subpoena be issued. The third group of states requires a writing from the Utah court in which your action
is pending, addressed to the court in the state where your deponent resides (the witness's home court), asking that court to issue a subpoena. And the fourth group of states
requires that you petition the court in the witness's state, usually by filing a "Miscellaneous Action," and then filing a motion in the witness's state requesting
permission to take the out-of-state deposition.
1. 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.3
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' website, at http://www.napps.org.
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 Utah 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.
2. 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.4
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 Utah 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.
3. "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,5 it has been my experience that several states' clerks and attorneys believe that this procedure is still required in their state. For example, I have often been required to get a Utah judge to sign a "Commission to Take Out-of-State Deposition" to be filed in a California court by a California attorney, before that court will issue a subpoena, despite the fact that California has adopted a liberal out-of-state depositions statute in Cal. Civ. Proc. Code ¤ 2029.
When taking a deposition in one of these states, you must obtain a writing from the Utah 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." My experience has been that Utah trial judges are amenable to signing these requests. As time is often of the essence,
I have frequently hand-delivered my Letters Rogatory to the trial judge (after calling his or her clerk to arrange a convenient time) and the judge has signed them immediately.
The advantage to this method is that, because you have a direct communication from your Utah 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.
4. "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.6 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.
As for hiring out-of-state counsel, I have often had the most luck targeting a medium-sized litigation firm in the same city as the court I need to file in, and then looking
for a younger associate at that firm. 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. Try http://www.martindale.com, Martindale-Hubbell's online Lawyer Locator.
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.
III. FINAL TIDBITS: THE LOGISTICS OF TAKING THE DEPOSITION
Once a subpoena has been issued and the witness has been served, you need to make the logistical
arrangements necessary to ensure your deposition will run smoothly. Here again the internet can be of great assistance. Obviously you will need to make the necessary 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.
Arranging for a court reporter is as simple as contacting DepoNet at <http://www.deponet.com>. Many DepoNet reporters have office or conference-room facilities available
for your deposition. If not, you can usually arrange for a small (or large) conference room at your hotel in which to take the deposition. Be sure to inquire whether the hotel
has facilities for making copies, providing lunch services, making long-distance telephone calls, internet services, e-mail, and adequate cell-phone coverage.
I have also found it a wise practice to make personal contact with the court reporter who will be recording my deposition well before the deposition is scheduled to take place.
I often provide a list of key reference names so that the court reporter will have the correct spellings available at the time of the deposition. I provide the court reporter
with the names and contact information of all counsel likely to attend the deposition and/or likely to want to receive a copy of the deposition transcript. If there are any
special deposition requirements, like videotaping or simultaneous computer transcription, this is a good time to make sure your court reporter can handle your needs. If there
are voluminous documents that are likely to be introduced at the deposition, you may want to ship them ahead of time to the deposition site or court reporter.
Finally, there is no substitute for personal contact with the out-of-state witness or his or her counsel. Make sure the witness (and counsel) know the location, time, and date
the deposition will be taken. If there is 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. Most importantly, however, taking the witness's temperature (or counsel's) prior to the deposition is the best way to
alert yourself to potential problems with the witness's appearance. There are few things worse than arranging an out-of-state deposition, traveling to the destination with
your client, and having the witness fail to appear.
CONCLUSION
Each of the 50 states and the District of Columbia has enacted either a statute or a rule of procedure governing the taking of depositions for use in
another state.7 No statute or rule, however, can substitute for personal contact with the clerk of the court in the county in which your witness resides. Only the clerk can tell you exactly how the local practice works for issuing and enforcing subpoenas to residents of the jurisdiction for depositions to be used in another state.
Clearly taking an out-of-state deposition can be time consuming, expensive, and frustrating. The information in this article should help to reduce confusion, save your client
some legal research expense, and ensure that your out-of-state deposition goes off without a hitch.
1 This article focuses on the practical logistics of conducting a deposition of a witness located in another state. In taking such a deposition, there are various
considerations, such as whether taking a deposition in a state in which you are not licensed constitutes the unauthorized practice of law, and which state's laws will govern
the conduct of the deposition and disputes over protective orders and motions to compel. These issues are beyond the scope of this article and are, therefore, not discussed.
2 Fla. Stat. ¤ 92.251; Ga. Code ¤¤ 24-10-110 to -112; La. Rev. Stat. ¤ 13:3821; Md. Code, Cts. & Jud. Proc. ¤ 9-401; Nev. Rev. Stat. ¤¤ 53.050 to .070; N.H. Rev.
Stat. ¤ 517 A:1; Ohio Rev. Code ¤ 2319.09; Okla. Stat. tit. 12, ¤ 462; S.D. Codified Laws ¤ 19-5-4; Tenn. Code ¤ 24-9-103; Va. Code ¤ 8.01-411; V.I. Code tit. 5, ¤ 695; Wyo.
Stat. ¤ 1-12-115.
3 Cal. Civ. Proc. Code ¤ 2029; Neb. Disc. R. 28(e); N.Y. C.P.L.R.. 3102; R.I. Gen. Laws ¤ 9-18-11; S.C. R. Civ. P. 28(d); Tx. Civ. Prac. & Rem.
Code ¤ 20.002
4 Ala. R. Civ. P. 28(c); Del. Code Ann. tit. 10, ¤ 4311; D.C. R. Civ. P. 28-I(b); Idaho R. Civ. P. 28(e); Minn. R. Civ. P. 4 5.04; Mont. R. Civ.
P. 28(d); N.M. Stat. Ann. ¤ 38-8-1; N.C. R. Civ. P. 28(d); N.D. R. Civ. P. 45(a)(3); Ohio Rev. Code Ann. ¤ 2319.09; Or. R. Civ. P. 38(c); S.C. R. Civ. P. 28(d)(1); Tenn. Code
Ann. ¤ 24-9-103; Utah R. Civ. P. 26(h).
5 Ala. R. Civ. P. 28(c); Ark. R. Civ. P. 28(c); Ky. R. Civ. P. 28.03.
6 Ala. R. Civ. P. 28(c) (judge issues subpoena;
need commission from trial state); Alaska R. Civ. P. 27(c) (court issues subpoena upon motion); Ariz. R. Civ. P. 30(h) (separate action must be commenced in home state; clerk
issues subpoena); Ark. R. Civ. P. 28(c) (judge issues subpoena; need letters rogatory from trial state); Conn. Gen. Stat. ¤ 52-155 (application to judge, justice of peace,
notary or commissioner for a subpoena); Conn. S. Ct. Rule ¤ 13-28(g) (deposition can be taken upon application); D.C. R. Civ. P. 28-I(b) (clerk issues upon judge's approval;
file notice with home state court); Haw. Rev. Stat. ¤ 624-27 (presentation of verified petition required); Ill. S. Ct. R. 204(b) (petition required); Kan. Stat. ¤ 60-228(d)
(ex parte petition); Ky. R. Civ. P. 28.03 (judge issues subpoena; need commission from trial state); Mich. R. Civ. P. 2.305(E) (judge issues subpoena upon petition); Mo. R.
Civ. P. 57.08 (court issues subpoena upon ex-parte application); N.J. R. Civ. P. 4:11-4 (court may issue subpoena upon ex parte petition; must file miscellaneous action); N.M.
Stat. Ann. ¤ 38-8-1 (judge issues order to witness to attend deposition; witness must have 10 days' notice); N.C. R. Civ. P. 28(d)(1) (judge issues subpoena); Okla. Stat. tit.
12, ¤ 1703.02 (judge issues subpoena upon application); 42 Pa. Cons. Stat. ¤ 5326 (court issues subpoena); Vt. R. Civ. P. 28(d) (judge may issue subpoena upon petition); Wash.
R. Civ. P. 45(d)(4) (judge or justice of the peace may issue subpoena); W. Va. R. Civ. P. 28(d) (court issues subpoena).
7 Ala. R. Civ. P. 28(c); Alaska R. Civ. P.
27(c); Ariz. R. Civ. P. 30(h); Ark. Stat. ¤ 16-44-114; Cal. Civ. Proc. Code ¤ 2029; Colo. Rev. Stat. ¤ 13-90-111; Conn. Gen. Stat. ¤ 52-148e(f); Del. Code tit. 10, ¤ 4311
(1975); D.C. Code ¤ 14-103 (1989); D.C. R. Civ. P. 28-I(b); Fla. Stat. ¤ 92.251; Ga. Code ¤¤ 24-10-110 to -112; Haw. Rev. Stat. ¤ 624.27; Idaho R. Civ. P. 28(e); Ill. S. Ct.
R. 204(b); Ind. R. Civ. P. 28(E); Iowa Code ¤ 622.84; Kan. Stat. ¤ 60-228(d); Ky. R. Civ. P. 28.03; La. Rev. Stat. ¤¤ 13:3821, 13:3824; Me. R. Civ. P. 30(h); Md. Cts. &
Jud. Proc. Code ¤ 9-401; Mass. Ann. Laws ch. 223A, ¤ 11; Mich. Comp. Laws ¤ 600.1852; Mich. R. Civ. P. 2.305(E); Minn. R. Civ. P. 45.04; Miss. R. Civ. P. 45(a); Mo. Ann. Stat.
¤ 492.100; Mo. R. Civ. P. 57.08; Mont. R. Civ. P. 28(d); Neb. Disc. R. 28(e); Nev. Rev. Stat. ¤ 53.060; Nev. R. Civ. P. 45(d)(3); N.H. Rev. Stat. ¤ 517:18; N.J. R. Civ. P.
4:11-4; N.M. Stat. ¤ 38-8-1; N.Y. C.P.L.R. 3102(e); N.C. R. Civ. P. 28(d); N.D. Cent. Code ¤ 31-05-22 (1976); Ohio Rev. Code ¤¤ 2319.08, 2319.09; Okla. Stat. Ann. tit. 12, ¤
462 ; Okla. Stat. Ann. tit. 12, ¤ 1703.02; Or. R. Civ. P. 38(c); 42 Pa. Cons. Stat. ¤ 5326; R.I. Gen. Laws ¤ 9-18-11; S.C. R. Civ. P. 28(d); S.D. Codified Laws ¤ 19-5-4; Tenn.
Code ¤ 24-9-103; Tex. Civ. Prac. & Rem. Code Ann. ¤ 20.002; Utah R. Civ. P. 26(h); Vt. R. Civ. P. 28(d); Vt. Stat. Ann. tit. 12, ¤ 1248; Va. Code Ann. ¤¤ 8.01-411 to -412;
Wash. R. Civ. P. 45(d)(4); W. Va. R. Civ. P. 28(d); Wis. Stat. ¤ 887.24; Wyo. Stat. ¤ 1-12-115.
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