2010 Changes to Procedure for Issuing Foreign Deposition Subpoenas in California

The California Judicial Council has developed new forms for use on January 1, 2010 when the new law goes into effect, setting forth a new procedure for issuance of foreign deposition subpoenas. The law, California Code of Civil Procedure (CCP) § 2029.010, et seq. has already been published in many code books, and the old law was inadvertently repealed. The old law was reborn in the form of a California rule of Court, CRC § 3.1015, which will sunset when CCP 2029.010, et seq. goes into effect. The forms developed are:

1. Application for Discovery Subpoena in Action Pending Outside California (form SUBP-030);
2. Subpoena for Production of Business Records in Action Pending Outside California (form SUBP-035);
3. Deposition Subpoena for Personal Appearance in Action Pending Outside California (form SUBP-040);
4. Deposition Subpoena for Personal Appearance and Production of Documents and Things in Action Pending Outside California (form SUBP-045);
5. Subpoena for Inspection of Premises in Action Pending Outside California (form SUBP-050).

You can see the new forms in the Committee Report here presented on October 23, 2009 at the California Judicial Council meeting.

This new procedure will be a "sea change" for courts, litigants and process servers who regularly deal with this procedure. Heretofore, each court has developed their own methodology for issuing a foreign deposition subpoenas because there was little direction given in the statute as to how a subpoena would be issued. It is a rare and obscure procedure in some courts, but finally, there are very specific, bright lines which will ensure consistency across the state. Most importantly, the change will clearly facilitate interstate discover in California and the courts, litigants, process servers and photocopiers will benefit.

$30 filing fee for filing an application for subpoena, which references the documents necessary to initiate this process. No longer will the court be allowed to charge a First Appearance Filing Fee, or demand additional documents not referenced in the statute. They will not be allowed to require that the documents be authenticated by the foreign court. The only document required will be a duly issued subpoena - no commission, notice of deposition, letters rogatory, or court order from the foreign court.
Standardized Application form. The courts will file a standardized Judicial Council form to initiate this process, eliminating the disparate demands of local courts.
The law specifies that foreign counsel can make the application for a California subpoena. No longer will court be allowed to demand local counsel to file these forms, a requirement that has never been required since 1885, the year this procedure was introduced by the California legislature.
No civil case cover sheet will be required. Courts will no longer be able to demand this form. The application is the only document that initiates this procedure.
Standardized subpoena forms. Judicial Council deposition subpoena forms will be issued for this procedure, which provides a place for the foreign court jurisdiction and case number.
Deposition Subpoena for Records. The prior law was silent regarding the authority to issue a "records only" subpoena and created an ambiguity. The new law specifically authorizes "records only" subpoenas.
Issuance by a California attorney. Upon presentation of the documents required under the statute, a California attorney may issue a foreign deposition subpoena without going to the local court. This could result in substantial savings when extensive discovery is initiated.