Discovery without Borders

Anyone who has practiced family law for any period of time has run into the issue of trying to obtain documents from out of state. For many litigators, the choice was to either send a Kentucky Subpoena out of the state and hope that a person will voluntarily comply, or not receive any documents. If an attorney was lucky to represent a client who had funds, they could obtain an order from a court in their home jurisdiction, file that order with the foreign jurisdiction and request the order be enforced. This would require that the litigant hire an attorney licensed in the foreign jurisdiction to enter their appearance and enforce the order from the State of Kentucky. This was not a practical procedure for many clients, with limited funds, that were facing a divorce and a division of the marital estate.

Now that the world we live in is more mobile and electronic, clients have many connections to different states. This results in multiple jurisdictions containing relevant information necessary to the case. It is also not uncommon for residents that live near the border of this state to hire professionals, such as accountants, doctors or attorneys, who live and practice in other states. If a litigant wants to take those depositions, then other issues arise that are usually only resolved if the parties can agree, or again, by going to the local jurisdiction to seek an order, to be registered in the foreign state and then enforced. 

For many years, there were attempts to bring forth uniform laws that would allow for discovery across jurisdictions, however, the 1962 Uniform Interstate and International Procedure Act, and its predecessor the 1920 Uniform Foreign Depositions Act did not gain much traction as a majority of states refused to adopt these acts. It wasn’t until 2007 that the Uniform Law Commission[1] created the Uniform Interstate Depositions and Discovery Act (“UIDDA”), providing a mechanism for litigants to efficiently and effectively obtain information in foreign jurisdictions.

The UIDDA is intended to ease the difficulty of obtaining discovery in foreign jurisdictions. In 2008, Kentucky codified the UIDDA with the adoption of  KRS 421.360 and joined Alabama, Alaska, Arizona, California, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, 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. In 2015, Arkansas, Illinois and Wisconsin all introduced legislation to enact this Act into their state laws.

With a majority of states passing this act, it helps meet the Act’s overall purpose, which is a uniform act to set forth a procedure that can be easily and efficiently followed, that has a minimum of judicial oversight and intervention, which is cost-effective for the litigants, and is fair to the deponents. UIDDA §3 (2007) (emphasis added).

Kentucky has adopted this Act verbatim, the language of which can be found in KRS 421.360: 

 (1) This section may be cited as the Uniform Interstate Depositions and Discovery Act.

 (2) As used in this section:

(a) "Foreign jurisdiction" means a state other than this state;

(b) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction;

(c) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;

(d) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States; and

(e) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to:

1. Attend and give testimony at a deposition;

2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

3. Permit inspection of premises under the control of the person.

(3)       (a) To request issuance of a subpoena under this section, a party shall submit a foreign subpoena to the clerk of the Circuit Court of the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this section does not constitute an appearance in the courts of this state.

(b) When a party submits a foreign subpoena to a clerk of the Circuit Court in this state, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(c) A subpoena under paragraph (b) of this subsection shall:

1. Incorporate the terms used in the foreign subpoena; and

2. Contain or be accompanied by 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.

(4) A subpoena issued by a clerk of the Circuit Court under subsection (3) of this section shall be served in compliance with any rule of court or statute relating to the service of a subpoena issued in this state.

(5) Rules of court and any provision of the Kentucky Revised Statutes applicable to compliance with subpoenas to attend and give testimony; produce designated books, documents, records, electronically stored information, or tangible things; or permit inspection of premises shall apply to subpoenas issued under subsection (3) of this section.

(6) An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of the Circuit Court under subsection (3) of this section shall comply with the rules of court of this state and statutes of this state and be submitted to the Circuit Court in the county in which discovery is to be conducted.

(7) In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(8) This section applies to requests for discovery in cases pending on July 15, 2008.

If a litigant wants to subpoena documents in a foreign jurisdiction and that jurisdiction has passed the UIDDA, then the process should be simple for the litigant. Under the UIDDA, the litigant must submit the following to the state where discovery is sought: (1) a request for issuance of a subpoena (most states have a form) attaching the foreign subpoena (the subpoena from the state where trial is pending); and (2) a subpoena prepared according to the procedures of the state in which you are seeking discovery. That subpoena should incorporate the terms of the foreign subpoena and contain the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates. If a party is not represented by Counsel, then they should also be included. The clerk of the court should issue a subpoena from the state in which discovery is sought and then it should be served under the rules of that state.

The real benefit of this Act is that obtaining a subpoena in a foreign jurisdiction does not constitute an appearance in the foreign jurisdiction. Therefore, a litigant seeking discovery would not need to obtain local counsel to obtain and issue the subpoenas, because the foreign jurisdiction’s rules regarding unlicensed attorneys practicing law in that state would not be violated.

However, it should be noted that the act is silent with regard to what happens if the party you are seeking documents from makes a motion to quash the subpoena in the foreign jurisdiction, requests a protective order in the foreign jurisdiction, or if the person who issued the subpoena seeks to enforce it in a foreign jurisdiction. The act does not seem to afford the foreign attorney with additional non-appearance language for these actions. If any of the aforementioned takes place, an attorney would probably need to obtain local counsel, licensed in the foreign jurisdiction, or risk being accused of practicing law in a foreign jurisdiction without a license.

It is important that you respect the state in which you are seeking discovery and its statutes regarding discovery. They may contain different procedural requirements that are not contained in the UIDDA and the UIDDA does not alter any states procedural requirements. For instance, the state of Kentucky allows for the service of a subpoena by any manner in which a summons may be served. Ky. R. Civ. P. 45.03. However, the state in which you are seeking discovery may not allow for service of subpoenas by certified mail, so it is important that you know and understand the procedural requirements, especially if you do not seek help from local counsel.

A practitioner must also understand what the UIDDA does not do, or where it does not apply. The UIDDA only applies to subpoenas issued in relation to a Court action. It does not apply to subpoenas that may be issued to administrative hearings or other proceedings where a subpoena may be issued. The commission considered this in its notes to the UIDDA, but had concerns that like previous versions, it would meet resistance from states and would not catch on and help fix the issue.

In addition, the UIDDA does not supersede or affect the rules of Court in the state in which trial is occurring. If the trial state requires that a notice of deposition is to accompany a subpoena, then the UIDDA does not do away with this requirement, but actually requires you to follow those rules in the trial state. The UIDDA is meant to govern the procedure in the state in which you are seeking discovery.

The UIDDA should allow for an easier, less expensive and less stressful way to obtain discovery across state lines, so long as there is not a challenge to the discovery that you are attempting to obtain. If there is no challenge to your discovery and the state has adopted the UIDDA, then you should be able to obtain documents easily. If there is a challenge to your discovery, you will probably need the assistance of local counsel. Overall once more states adopt this act and attorneys become more comfortable using this act, then the ability to conduct out of state discovery should be relatively the same.

[1] Formerly known as the “National Conference of Commissioners on Uniform State Laws”