It’s a big, interconnected world out there. Disputes filed in one state regularly involve witnesses and documents located in other states. Fortunately, the Uniform Interstate Depositions and Discovery Act – adopted in 49 states and territories and introduced in two others – provides a mechanism for parties to “domesticate” foreign subpoenas in the “discovery state” where desired evidence is located.
Under California’s version of the Uniform Depositions and Discovery Act (California Code of Civil Procedure (“CCP”) §§ 2029.100 et seq.), either a clerk of court or a licensed California attorney can issue subpoenas for testimony, the production or inspection of documents or things, or the inspection of premises found in California. The subpoena must otherwise comply with the California Civil Discovery Act (CCP §§ 2016.010 et seq.) and will be enforced, if necessary, by California courts.
This article will briefly summarize the process for out-of-state litigants to obtain a California subpoena; unique considerations in serving said subpoena; and how to enforce a subpoena in California courts, if necessary.
Obtaining the Subpoena
Parties to non-California litigation seeking to serve a subpoena on a California resident have options. The first option is to ask a clerk of the superior court in the California county in which the discovery is to be conducted to issue a subpoena. CCP § 2029.300. The party must submit to the clerk the original and one copy of the foreign subpoena, along with the required application and payment of the required fee. Id. Alternatively, a party to a foreign action may hire a California attorney to issue a subpoena for discovery in California. CCP § 2029.350.
Whether issued by a clerk of court or a California attorney, the California subpoena must incorporate the terms of the foreign subpoena, and must be on a form prescribed by the Judicial Council. CCP §§ 2029.300(d)(1), (5); 2029.350(d)(1), (5).
Once the clerk or attorney issues the subpoena, it must be served in compliance with California law, which usually means personal service unless the witness agrees to accept service in some other fashion. CCP §. 2029.400. The conduct of the ensuing non-party witness deposition, production of documents or things, or inspection of premises must comply with California law. CCP § 2029.500. If a dispute arises relating to such discovery, a party or witness may file a “petition” in the applicable California superior court for a protective order or to enforce, quash, or modify a subpoena. CCP § 2029.600.
Attempts to enforce the California subpoena in a non-California court are likely to be challenged. For instance, in Quinn v. Eighth Judicial District Court in and for County of Clark, the Nevada Supreme Court vacated a lower court’s attempt to enforce subpoenas issued to California witnesses, holding that California courts had jurisdiction over the discovery dispute. 134 Nev. 25 (2018). As the court wrote: “[T]he discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests.” 134 Nev. at 30.
Considerations for California Subpoenas
Since a California subpoena for a foreign action must comply with California law, it is important for foreign parties to keep California’s subpoena requirements in mind. For instance, the deposition of a natural person must take place within 75 miles of the deponent’s residence (or, technically, within the county where the action is pending and within 150 miles of the deponent’s residence, though this is irrelevant in the case of a foreign action). CCP § 2025.250(a). If the subpoena seeks the records of a “consumer” (CCP § 1985.3(a)(2)) or “employment records” (CCP § 1985.6(a)(3)), then the affected consumer or employee must also be given notice and an opportunity to object to production of the records sought.
Foreign parties also should be aware of the deadline to seek the court’s intervention if the witness has not complied with the subpoena. Code of Civil Procedure section 2025.480(b) states that a party may move to compel answers or production of documents “no later than 60 days after the completion of the record of the deposition.” In Board of Registered Nursing v. Superior Court, the California Court of Appeal confirmed that the 60-day deadline starts to run on the compliance date stated on the subpoena, and is not extended if the party and witness meet and confer over the scope of the subpoena, or if the witness makes a rolling or piecemeal production of documents. 59 Cal.App.5th 1011, 1034-35 (2021).
Conclusion
The Uniform Interstate Depositions and Discovery Act provides a mechanism for foreign parties to obtain evidence in California. However, the foreign party must play by California’s rules, including due consideration for the rights of non-party witnesses and firm deadlines to ask courts to intervene, if required. To navigate these requirements, it may be best to hire local California counsel who can issue the subpoena and guide the way through service and enforcement.
For more information regarding Alto Litigation’s litigation practice, please contact one of Alto Litigation’s partners: Bahram Seyedin-Noor, Bryan Ketroser, Joshua Korr, or Kevin O’Brien.
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