By Alana Gibson, Chief Operating Officer, DGR Legal
Prior to the introduction of the Uniform Interstate Depositions and Discovery Act (UIDDA) in 2007 and its adoption in 2014 by New Jersey, deposing individuals or conducting discovery outside of the state a case originated in was a daunting task.
The UIDDA created a streamlined way to domesticate a subpoena across state lines without needing to retain counsel there.
For family law attorneys, this means that soliciting testimony or gathering evidence from an out-of-state party is a significantly simpler process. This is particularly helpful for divorce cases, which frequently require requests for financial documentation and records related to asset valuation and ownership.
While not every state has adopted the UIDDA, it’s a useful method for requesting discoverable evidence in family law matters and scheduling depositions where permitted.
Resolution of Difficulty in Serving
The UIDDA was created due to the many variances in state rules and cumbersome procedures required to serve a subpoena in another jurisdiction. Out-of-state discovery involved complicated procedures that differed from state to state and often required retaining local counsel. Every state had its own laws, and it was necessary for family law attorneys to be familiar with each state’s particular requirements in order to conduct discovery.
Some states also required that a notice of deposition be shown to the judge or clerk in the discovery state, where a subpoena would then be automatically issued. Others required a notice of deposition to be filed in the trial state and the witness to then be served a subpoena according to the rules of the trial state. There were also states that required letters rogatory requesting the reissuing of the subpoena in the trial state, with other states requiring the attorney in the discovery state to file an action to establish jurisdiction over the witness.
The process through the UIDDA is much more efficient and removes the need for local counsel or for a family law attorney to maintain knowledge of the varying rules and requirements of each state. It also eliminates the need for letters rogatory or a commission from the discovery state.
Most importantly, it saves judicial resources, as it takes significant time for the courts to handle domesticating a subpoena. This is particularly critical for family law attorneys, who often deal with high-stakes and emotionally charged cases like divorce and child custody matters.
How the UIDDA Works
To serve a subpoena through the UIDDA, a draft subpoena that complies with the rules of the other state must be created.
It’s important to remember any motion to quash or modify is governed by the rules of the state where the subpoena will be domesticated. Applying for the reissued subpoena can be done by mail to the clerk in the state where it needs to be domesticated. If there is any kind of deadline in place, this could cause a significant problem due to delays in both receiving and sending back the subpoena via mail once reissued.
The reissuing of the subpoena is handled by the clerk or prothonotary depending on the state. In most commonwealth states, the prothonotary will handle this. Once the subpoena is reissued it will either receive a new index number or be signed by the clerk.
If scheduling a deposition, this must happen in the same county where the document is being served. The domestication of the subpoena must take place in that county in order for it to be enforceable.
After the subpoena is domesticated, it can then be served according to the rules and laws of that state. There are particular requirements for what documents must be served along with the reissued subpoena. Be sure these are included or else the service will be not be considered valid.
The State of New Jersey Law Revision Commission’s final report relating to the UIDDA provides an example as to how the new process works:
“A witness in Florida needs to be deposed in preparation for a Kansas trial. Under the UIDDA, a lawyer of record for the plaintiff in the Kansas action issues a subpoena in Kansas as the lawyer routinely would issue in pending actions. That lawyer then obtains a copy of a form of subpoena from the clerk’s office in the Florida county where the witness to be deposed lives. Using the Florida subpoena form, the lawyer prepares a Florida subpoena that incorporates the terms and conditions of the Kansas subpoena. The lawyer then arranges for the executed Kansas subpoena, along with the completed by not yet executed Florida subpoena, to be delivered to the clerk’s office in Florida. The transmittal letter advises the clerk that the Florida subpoena is being sought pursuant to the Florida statute (citing the appropriate statute or rule quoting the UIDDA). The clerk of the court issues a Florida subpoena incorporating the terms and conditions of the Kansas subpoena and a process server, in accordance with Florida law, then serves the Florida subpoena on the deponent. Appropriate filing and service fees are paid as required by Florida law.”
A Process Server's Role in the UIDDA
Even though the process has been simplified, it doesn’t mean that the documents can be served as they are within a state other than the original jurisdiction. The UIDDA process requires dealing with the clerk of the court in the jurisdiction where discovery is being pursued.
While a family law attorney doesn’t need to file a motion, this subpoena does still need to be reissued in the new jurisdiction. Additionally, using a process server ensures your subpoena is brought to the court clerk in person, cutting down significantly on the time need for domestication and avoiding the possibility of missed deadlines. It should be noted, however, that with the impact of COVID, turn-around time can vary based on the court and staffing. In some instances, extensions it has been necessary to request an extension.
Given the variances in state rules and policies, using a process server can be extremely beneficial in expediting the timeline and accuracy of domesticating a foreign subpoena.
Process servers who regularly serve UIDDA subpoenas become familiar with every court clerk and can hand-deliver documents anywhere in the country. As a result, family law attorneys save time and money on the research involved in locating the correct court clerk and local process, while ensuring accuracy and speed of completion.
States that Are Part of the UIDDA
While not every state has adopted the UIDDA, many have.
Please note: the states listed below are subject to change at any time. For a complete list of states that have adopted the UIDDA, please visit the Uniform Law Commission’s website.
States which are part of the UIDDA:
- District of Columbia
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- U.S. Virgin Islands
- West Virginia
* Missouri has adopted the UIDDA, but as of the time of this article, they are still operating under their previous rules.
Family law attorneys should take advantage of the UIDDA to gain a more efficient and cost-effective discovery process by limiting judicial oversight and eliminating the need to obtain local counsel in the discovery state.
A process server can cut down on costs even further by removing the burden of researching state-specific information and expedite timelines by personally handling the reissuing and domesticating of the subpoena with the court clerk. In states where the UIDDA has been adopted, expect a significantly improved experience when dealing with subpoenas for depositions or the production of documents for family law matters.