Proposed Changes to Procedures for Issuing Foreign Deposition Subpoenas

The National Conference of Commissioners on Uniform State Laws (NCCUCL) have approved a new Uniform Deposition and Discovery Act which is intended to streamline the issuance of subpoenas between states in state court actions. NCCUCL PRESS RELEASE

The NCCUCL adopted similar Uniform Deposition Acts in 1920, 1962, and again in 1977, but many states failed to fully adopt the language into their respective statutes. As a result, each state laws relating to issuance of a subpoena for use in another state vary dramatically. It increases the costs and complexity of litigation. In some states, particularly in California and Pennsylvania, the procedure varies between county courts.

This new Uniform Deposition and Discovery Act updates the procedure and more closely analogizes it with the Federal Rules of Civil Procedure 26, 30, 34 and 45.

The Uniform Deposition and Discovery Act was approved at the 2007 NCCUCL Annual Conference in Pasadena. 2007 Annual Meeting Approved text

Following are highlights of this new act:

Eliminates reference to a commission or letters rogatory
Adds "federally recognized Indian tribes" to the definition of a foreign state
Omits applicability to arbitration matters
Adds "electronically stored information" to further expand the definition of "records" subject to subpoena
Specifies that filing of documents in a foreign state for this purpose does not constitute an unauthorized practice of law
Contemplates resolution of disputes in the forum court (where the case is pending)

This act will be submitted to each state for consideration by the legislatures and/or rule-making body.

The California Law Revision Commission (CLRC) has been studying this procedure for the last 3 years and will likely be proposing a legislative change to amend CCP § 2029.010. Issuing a subpoena for a California witness to testify or produce records for use in an action pending in another state court varies widely between counties. For instance, San Diego, San Mateo and Sacramento Counties issue subpoenas for free; Los Angeles, San Francisco and Santa Clara require a civil case cover sheet and a $320 first appearance filing fee. San Francisco and Santa Clara also require local counsel to sign a civil cover sheet - San Francisco has changed their procedure 3 times in the last 5 years, and also requires a petition and declaration of a California attorney.

You may read the progress of this study by reading the following CLRC Memos

Memorandum 2006-46 Civil Discovery: Deposition in Out-of-State Litigation (Draft of Recommendation) December 1, 2006

Memorandum 2006-41 Deposition in Out-of-State Litigation (Draft of Recommendation) October 3, 2006

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