By: Kizzy Bivins, Paralegal and Laura Marin, Paralegal
A foreign subpoena is a subpoena issued under the authority of a court of record of a foreign jurisdiction. This includes the 50 states, District of Columbia, Puerto Rico and Virgin Islands. A foreign subpoena is needed when you want to take the deposition of a non-party or obtain records from a non-party in another state.
Before You Start:
- Understand that foreign subpoenas can be very time consuming, tedious and expensive. Make sure the client understands as well.
- Determine if the records you want are public information. If the records are public information you can usually obtain them via a Public Information Act (PIA) request or Freedom of Information Act (FOIA) request, and you do not have to copy the other parties on them.
- If the records are not public information, see if you can get an authorization signed by the plaintiff/patient.
- If you cannot get an authorization or obtain the records via PIA or FOIA requests, check and see if the entity has a resident agent in the state and/or calling and asking them. You can also call and ask them if they will accept a foreign subpoena. Some providers will accept foreign subpoenas.
- If none of these are an option, start the process to obtain a foreign subpoena.
Step 1: Check to see if the state in which you need to obtain the subpoena is part of the UIDDA.
- The Uniform Interstate Depositions and Discovery Act (UIDDA) is a model statute adopted to establish a uniform process for obtaining depositions and discovery in conjunction with other participating states. The majority of the states have enacted UIDDA, but some have not.
- UIDDA enacted in: Alabama, Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin
- Although this is not completely necessary, since every court has a different procedure, it might give you an idea of how difficult it might be to obtain the foreign subpoena. The process tends to be a little bit easier in states that have adopted the UIDDA.
Step 2: Determine what court you need to go through.
- Find out where the subpoena needs to be issued in order to obtain the records or to serve the person that you are going to depose. (e.If you are trying to acquire medical records, call the provider to find out where subpoenas are issued in order to get them. If you are obtaining employment records, find out if the subpoena needs to go to a specific HR or a corporate HR department). You must figure this out before you go any further so you do not get the subpoena from the wrong court.
- Once you know from where the subpoena has to be issued, find the court in that city/state that handles the same type of case that you have pending in your jurisdiction.
Step 3: Call the court.
- Once you know the court you need to get the foreign subpoena from, call them and ask what their procedure is for obtaining the foreign subpoena.
- Take very detailed notes, and make sure that you know where to get any forms, if they have any.
- Find out whether there are any fees and who the check gets made out to, if there are any.
- Make sure you follow the procedures word for word. Court procedures may differ from county-to-county or court-to-court, even within the same state and some courts will kick back the subpoena for the slightest errors.
- Record the name and number of the person you spoke with in case you need to call and follow up.
- Some courts that have not yet adopted the UIDDA will require an approved commission, Letters Rogatory, or Order from your court.
- Once drafted, file it with your court. Once it is approved and received back, it can then be filed with the out-of-state court in order to request the out-of-state subpoena.
- If something of this nature needs to be filed with the out-of-state court, depending on the court, you will need to hire a firm in that state to assist in filing the documents.
Step 4: Issue the out-of-state subpoena once it is received.
- Once you receive the stamped subpoena back from the out-of-state court, issue the subpoena with the normal documents that accompany your subpoenas for the type of Discovery you are seeking, (i.e. Notice to Take Deposition, Notice to Patient, Notice of Service, Health General Article, etc.)
- Check the local rule in the state where you are seeking the Discovery to ensure that the subpoena complies with those rules (i.e. number of days before a deposition that the subpoena needs to be served, distance you require a deponent to travel to appear at a deposition, fees to be paid to a deponent, etc.)
Tips and Things to Remember
- Keep in mind that it can sometimes take weeks to a month or two to get the subpoena back from the foreign court.
- If you have to file a commission or request an order from your court, it can also sometimes take weeks to a month or two to get it back before you can even request the subpoena from the foreign jurisdiction.
- If you must hire an out of state attorney to assist in filing a miscellaneous case in the foreign court, try to use a firm that has assisted your firm with foreign subpoenas before.
- When providing a return envelope for the stamped subpoena, use a FedEx labeled envelope so that you can track it and ensure it will be received timely.