Your construction contract requires you to file suit in the state court where the project is located. But all of the witnesses were from out-of-state and have since moved on—so how do you depose them?

Typically, the subpoena power of a state court is limited to within the state’s borders, rendering out-of-state witnesses immune from depositions and document requests. Various uniform acts have emerged over the years to allow for the enforcement of out-of-state subpoenas, but these acts were uneven in their application and often had clunky procedural obstacles, such as opening up a “miscellaneous action.”

However, a more recent uniform act seeks to streamline out-of-state discovery. First promulgated in 2007, the Uniform Interstate Deposition and Discovery Act (“UIDDA” or the “Act”) has since been adopted in 37 states,1 including the nearby states of Indiana, Illinois, Kentucky, Pennsylvania and Michigan. Ohio has not yet adopted the Act, but it has been introduced as legislation and is currently pending in the General Assembly. The UIDDA contains several unique features:

It applies to the “discovery” state—the jurisdiction where the discovery is sought.

The UIDDA governs subpoenas from trial courts in foreign states that seek discovery in the state where the act has been adopted. In other words, when a state adopts the UIDDA, it is adopting a procedure to allow for the enforcement of foreign subpoenas. This means that a litigant in Ohio can use the Act to obtain discovery in states that have adopted UIDDA, like Indiana, Michigan and Pennsylvania.

The enforcement procedure is simple and administrative in nature.

The process outlined in the UIDDA is very straightforward: the party seeking discovery must submit the foreign subpoena to the clerk of courts in the trial court where the discovery is sought. Once the subpoena is submitted, the clerk then serves a new subpoena (which incorporates the terms of the foreign subpoena) to the witness in accordance with the laws and procedural rules of the discovery state.

You do not need to obtain local counsel or open a “miscellaneous action” in the discovery state…

Fortunately, the UIDDA expressly provides that the act of submitting the foreign subpoena to the clerk of courts does not constitute an appearance in the courts of the discovery state. This is important, as it allows an attorney in the trial state to enforce a subpoena without obtaining local counsel or opening a “miscellaneous action” in the discovery state.

…but you will if there is a discovery dispute.

Most as-adopted versions of the UIDDA provide that if any party seeks to quash (or enforce) the subpoena, the motion must be made in the discovery state, the law of the discovery state will be applied and the motion (or opposition) will be considered an appearance in the court of the discovery state. So if there is a discovery dispute regarding the subpoena, you will likely need to obtain local counsel.

Does the UIDDA apply to arbitration proceedings?

The drafters’ comments to UIDDA make clear that they intended for the Act to only apply to subpoenas issued by trial courts, and not by arbitration panels or administrative bodies.  However, the plain language of the UIDDA applies to any subpoena issues “under authority of a court of record in a foreign jurisdiction.” Since most states provide that trial courts have the authority to enforce arbitration subpoenas, at minimum a good faith argument exists that such subpoenas are issued “under authority of a court of record” and thus subject to the UIDDA.

With the UIDDA in effect in most states, witnesses you may have not been able to compel the testimony of are now subject to the subpoena power of your state court action.

1. The states and territories that have adopted the Act are 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, and Washington.