Out-of-State Discovery and the Uniform Interstate Deposition and Discovery Act

Issue July/August 2019 August 2019 By Rosemary Macero
Civil Litigation Section Review
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Rosemary Macero

In today’s society of high mobility, chances are that the need to secure witness discovery in a state other than Massachusetts will arise. With party witnesses, this is not an issue because the party can be made to come to Massachusetts, or acceptable alternative arrangements can be made for scheduling and location. The real problem arises with non-party, out-of-state witnesses.

To commence the process in Massachusetts courts, the party needing the discovery uses the process of securing what is called a letter rogatory. The letter rogatory is the process in which the Massachusetts courts request the assistance of the other state’s courts, under rules of comity, to aid the Massachusetts courts and secure enforceability of the discovery via the subpoena power in the other state.

For the uninitiated, a letter rogatory is secured by filing a motion in the existing Massachusetts case. The motion contains a specific request to the court in which the case is pending to issue a letter rogatory. The letter rogatory, when issued, is an official request from the Massachusetts court to the court in the state in which the witness lives, resides or can be served. The letter rogatory requests the local court or witness court to assist the Massachusetts court in securing the attendance of the witness for deposition/discovery through the witness court’s enforcement power over the witness located in its jurisdiction. The issued letter rogatory is then filed in a miscellaneous action in the witness state court (by counsel admitted in the other state), and a subpoena to the witness is then issued in the witness state court case (filed for the sole purpose of securing subpoena power) within the time and distance and other limitations of the local state law for witness subpoenas. Subpoena service is made and, if the witness does not show up, the power of the local court can be used to enforce the subpoena. This process, in New Hampshire, was known as securing a commission.

While Massachusetts procedure has not changed, many other states, including New Hampshire, Vermont, New York and 28 other states, have adopted some version of the Uniform Interstate Deposition and Discovery Act (UIDDA). (There can be slight differences between jurisdictions in the adoption of uniform laws.) The UIDDA is an effort to simplify and standardize the process of issuing subpoenas in the witness state court to secure compliance of the out-of-state, non-party witness with the needed discovery and deposition.

The UIDDA does not change the process in the trial court state for securing the permission of the court for the requested discovery. Even if Massachusetts had adopted the UIDDA, the motion for the letter rogatory is still required. The UIDDA does attempt to streamline the procedure in the witness state.

The UIDDA, where adopted by the witness state, generally requires that the Massachusetts letter rogatory (the document allowing the deposition or discovery to proceed) and Massachusetts subpoena be issued. The Massachusetts subpoena and letter rogatory are then sent to the witness state with a subpoena that conforms to the rules of that jurisdiction (witness jurisdiction). Under the UIDDA, the witness state subpoena (and other documents, namely the letter rogatory and Massachusetts subpoena) is then sent to the appropriate court in the witness state. The witness state subpoena is then issued (signed) by a clerk or a judge in the witness state. The lawyer then makes service of the witness state subpoena (and Massachusetts documents) under the service rules of the witness state.

While the process can still be complex, the adoption of the UIDDA appears to remove the need for out-of-state counsel to file an action in witness state court to get the witness state subpoena to issue. The court issuance of the subpoena in the UIDDA jurisdiction and proper service of the witness state subpoena with the Massachusetts documents would be sufficient to secure attendance. If attendance did not occur, only then would the filing of a specific enforcement action in the courts of the witness’s state be necessary.

The UIDDA is not a complete fix for the issue of cross-border discovery, but it certainly appears to be a step in the right direction. 

Rosemary Macero, Esq. is the president and founder of Macero Law PC, with offices in Medford. She concentrates her practice on complex litigation, including complex contracts, commercial leases, construction, real estate litigation and specialty civil litigation cases in state and federal courts in Massachusetts, New York, Vermont and New Hampshire.