Sometimes a court case will require a person in another state or country to be deposed for information, evidence, or testimony. When this happens, it is called a foreign deposition or an interstate or international deposition, and requires a subpoena to be served by the state in which the discovery or deposition is to be conducted.
About Interstate and International Deposition Subpoena Services
What is it?
An interstate deposition subpoena is served when a person must be deposed for a case originating from a state other than the one in which they live.
An international deposition subpoena is served when a person living in a country other than the one where the case originates must be deposed.
How does it differ from serving a domestic deposition subpoena?
Each state has its own Rules of Civil Procedure for serving deposition subpoenas. When a domestic subpoena is served only one court's procedures must be considered, but when the subpoena needs to be served in another state, the rules of that court may be different from the rules of the trial court.
In these scenarios, a specific process must be followed in order for the subpoena service and deposition to be considered valid.
How it works
In order to have a foreign deposition served, you must comply with the rules of the state where the action is, obtain permission from the trial court to take an out of state deposition (if required), and apply to the foreign court for issuance of the subpoena in line with each state's rules. This also includes researching the rules for obtaining documents and what documents are required.
What information you will need to provide to the process server?
As much as possible. All information on the court case, person to be served, and any information you have on your state's foreign deposition laws will help the process server.
Importance of working with someone who specializes in foreign services
Working with someone who has experience with interstate deposition services is crucial. An inexperienced individual may violate laws and jeopardize the validity of the deposition.
Relevant Rules and Codes
When working through a foreign deposition serve, you'll need to be familiar with rules and codes regarding...
- Issuing and serving subpoenas and obtaining documents
- Taking depositions within state for a case in another state
- Deposing an out-of-state individual
- Providing notice to witnesses, distance restrictions, and mileage fees
Relevant California Codes
CODE OF CIVIL PROCEDURE SECTION 2026.010-2027.10
Parties to the action must be served a notice specifying a place within 150 miles of the residence or office of the deponent if it is in the same county, and within 75 miles if the residence or office is in another county.
Non parties to the action must be served under laws of the state where the deposition is to be taken.
The clerk of court may request a commission authorizing deposition in another state. A court order may be required in some foreign jurisdictions.
CODE OF CIVIL PROCEDURE SECTION 2029.100-2029.900 (Interstate and International Depositions Recovery Act)
The original foreign subpoena must be issued by the clerk of superior court in the county where discovery is to be conducted along with an application requesting the subpoena in order to have a subpoena issued.
The subpoena must include...
- all terms in the foreign subpoena,
- names, addresses, and telephone numbers of all counsel,
- caption and case number of the out-of-state case, and
- name of the issuing court.
An attorney licensed in California and a party to a proceeding in a foreign jurisdiction can issue a subpoena.
Uniform Interstate and International Depositions and Discovery Act
California was one of the first adopters of the Uniform Interstate and International Depositions and Discovery Act, which outlines a clear process for out-of-state deposition subpoenas.
States That DO NOT Recognize the Act (as of 2015)
- New Hampshire
- Puerto Rico
- Rhode Island
- West Virginia
States That Have Introduced the Legislation but Not Yet Enacted (as of 2015)
How it Works
If the involved states recognize the Uniform Interstate Depositions and Discovery Act, the below process is usually followed.
Step One: Issuing the Subpoena
A party submits a foreign subpoena to a clerk of court in the state where discovery is to be conducted. The clerk will then issue the subpoena for service in accordance with that court's procedure. The subpoena will incorporate the terms used in the foreign subpoena and names, addresses, and telephone numbers of all counsel. The subpoena must be in the context of a deposition.
Step Two: Service of the Subpoena
The subpoena must be served in compliance with the rules or statutes of the state in which the subpoena is being served.
Step Three: Deposition, Production, and Inspection
Testimony, producing of documents, records, and electronically stored information or other items must be obtained within the laws of the state in which discovery is being conducted.
You can read the full act here Uniform Interstate Depositions and Discovery Act.
Foreign Deposition Subpoena Process and Documents
For states that have not adopted the Uniform Interstate Depositions and Discovery Act, the process will require unique procedures depending on the states involved. Below is a general outline of the process.
- The subpoena must be in the context of a deposition.
- The attorney, process server, and all parties involved must comply with the rules of the state where the civil action is.
- Permission from the trial court to take an out-of-state deposition will need to be obtained (if required in that state).
Initiating the Process
After petitioning for an out-of-state deposition, a document issued by the trial court will initiate the process. This is usually one of the following.
- Order to Take Out-of-State Deposition: issued by trial court allowing the deposition of a person in another state.
- Commission to Take Out-of-State Deposition: names a person to take the out-of-state deposition.
- Stipulation to Take Out-of-State Deposition: agreement from both parties as a substitute for a Commission.
- Letter Rogatory: written request from the trial court to the court where the person is to be deposed.
Domesticating the Subpoena
With the order for out-of-state deposition issued, the next step is to apply to the court in the state where the person is to be deposed for the issuance of a subpoena to compel the witness within within its jurisdiction to attend the deposition.
Court rules of each state will dictate how this is done. This is usually done through one of the procedures below.
- Following the Uniform Interstate Deposition and Discovery Act: foreign subpoena submitted and obtained following the guidelines of the act.
- Requesting a subpoena to be issued from the domestic court: could require filing an application, submitting a petition, or providing any documents necessary to the court.
- Having an attorney file a formal petition: some states require a practicing attorney to file a petition to have the subpoena issued in the state where the person is to be deposed.
Serving the Subpoena
It will be necessary to consult with the court of the trial state and the deposition state to determine who is authorized to serve the subpoena.
Rules of Civil Procedure for serving a foreign deposition subpoena will need to be researched and followed.
Variance of Process
The process of domesticating and serving a foreign deposition subpoena will vary depending on which states are involved.
Deposing someone in California for a trial in another state vs. Deposing someone in another state for a trial based in California
If both states recognize the Uniform Interstate and International Depositions and Discovery Act, the process will follow what is outlined in the act.
However, if you are deposing someone in California for a trail in a state that does not recognize the Uniform Interstate and International Depositions and Discovery Act, we will follow the process according to the court as above.
If you need to depose an individual outside of California in a state that does not recognize the Uniform Interstate and International Depositions and Discovery Act, we will follow the process as guided by the relevant California codes and process as listed above.
Examples and Effects
The processes involved in obtaining foreign depositions is complex and can differ from state to state. Some states consider it unauthorized practice of law to request a subpoena to be issued or to have an out-of-state attorney not admitted to practice in the trial state take the deposition. This makes it even more important to work with a professional who understands the ins and outs of interstate and international deposition services.
Direct Legal Support, Inc. Will Handle Your Foreign Depositions
Direct Legal Support, Inc. has extensive experience handling out of state and international deposition services. We will work with you to ensure that your service is in accordance with the rules and regulations for the states involved. Call us today to get started, and we will guide you through this process.
For more information on serving out-of-state subpoenas, visit our Out-of-State Subpoena page.