With UIDDA, Pa. Joins Bandwagon to Simplify Third-Party Discovery

December 24, 2013Articles The Legal Intelligencer and Pennsylvania Law Weekly

"Reprinted with permission from the December 24 issue of The Legal Intelligencer and Pennsylvania Law Weekly. (c) 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved."

Pennsylvania has joined a growing number of states that have adopted the Uniform Interstate Depositions and Discovery Act. Promulgated by the Uniform Law Commission in 2007 and codified at 42 Pa. C.S. §§ 5331-37, the UIDDA establishes an efficient and inexpensive procedure for out-of-state attorneys attempting to serve subpoenas in Pennsylvania for discovery to be used in an action pending in another state. The UIDDA applies to requests for both depositions and documents from Pennsylvania witnesses, and the description of a subpoena in the act is based on the language of Rule 45 of the Federal Rules of Civil Procedure.

"Subpoena," as that term is defined in 42 Pa. C.S. § 5333, means a "document, however denominated, issued under authority of a court of record requiring a person to: (1) attend and give testimony at a deposition, hearing or trial; (2) produce and permit inspection and copying of designated books, documents, records, electronically stored information or tangible things in the possession, custody or control of the person; or (3) permit inspection of premises under the control of the person."

The Uniform Law Comment notes that the term "subpoena" does not include a subpoena for the inspection of a person, and medical examinations are separately controlled by state discovery rules. While 31 other jurisdictions have also adopted the UIDDA, it does not apply to foreign countries, including Canadian provinces.

A prefatory note to the UIDDA explains that the rules governing foreign depositions in every state differ in significant ways. For example, some states restrict the use of foreign depositions to judicial proceedings, while others permit their use for any proceeding. Some states permit subpoenas to cover testimony or documents and other physical things while other states limit production to documents. All of these nuances make out-of-state, third-party discovery confusing, costly and time-consuming. Moreover, such discovery is increasingly common in today's litigation environment.

According to the Uniform Law Commission, the UIDDA is intended to improve on current state procedures in four ways: (1) efficiency; (2) expense; (3) minimized judicial oversight; and (4) clear rules regarding discovery. The UIDDA increases efficiency because the clerk in the state where the deposition or discovery is being sought acts in a purely ministerial role, but in a way sufficient to invoke the jurisdiction of the discovery state over the deponent. The UIDDA should result in decreased cost because it avoids both the need for out-of-state litigants to obtain commissions from their home state as well as the need to obtain local counsel in Pennsylvania, who would then have to file a miscellaneous action seeking the issuance of a Pennsylvania subpoena.

Another important goal of the UIDDA is minimized judicial oversight—hopefully relieving the burden on the courts in some small part—because the parties are not required to present the matter to a judge in discovery court or another type of similar proceeding.

Finally, perhaps the biggest benefit of the UIDDA is greater clarity regarding discovery rules. Discovery under the UIDDA must comply with the court rules where discovery is being sought. Although the act is designed to simplify the process of obtaining discovery from third parties, it simultaneously recognizes that the discovery state has a real interest in protecting its residents who are nonparty witnesses from unreasonable and burdensome discovery requests.

In order to effectuate these goals, the procedure under the UIDDA is relatively straightforward and designed to streamline this cumbersome process. An out-of-state attorney presents a subpoena from the jurisdiction where the matter is pending to the prothonotary in the appropriate county in Pennsylvania—that is, the jurisdiction where the person who is the subject of the subpoena resides, is employed or regularly transacts business in person. Significantly, asking the prothonotary to issue a subpoena under the UIDDA does not constitute an appearance in a Pennsylvania court, and therefore the out-of-state lawyer need not worry about applying for pro hac vice admission prior to making the request.

The prothonotary will then issue a Pennsylvania subpoena for service within the state. The Pennsylvania subpoena will incorporate the terms used in the foreign subpoena and contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel. Of course, a person in Pennsylvania not served with a subpoena under the UIDDA may voluntarily give testimony or a statement or produce documents or other items for use in a matter before a tribunal outside of Pennsylvania.

The Pennsylvania Rules of Civil Procedure and any statutes relating to service of subpoenas and compliance with subpoenas in Pennsylvania apply to all subpoenas issued under the UIDDA with the same force and effect as they would for a subpoena issued to a nonparty for litigation pending in the state. This includes Rule 4009.21 (relating to subpoena upon a person not a party for production of documents and things; prior notice; objections); Rule 4009.22 (relating to service of subpoena); Rule 4009.23 (relating to certificate of compliance by a person not a party; notice of documents or things received); Rule 4009.24 (relating to notice of intent to serve subpoena; objection to subpoena); Rule 4009.25 (relating to certificate prerequisite to service of subpoena); Rule 4009.26 (relating to subpoena to produce documents or things); and Rule 4009.27 (relating to certificate of compliance).

Any applications for a protective order or requests to enforce, quash or modify a subpoena issued under the UIDDA must comply with Pennsylvania rules and statutes and must be submitted to the county that ordered service of the subpoena upon the Pennsylvania resident. Although not specified in the UIDDA, such a request for enforcement, modification or for a protective order would constitute an appearance in the Pennsylvania courts requiring admission, either pro hac vice or by a Pennsylvania lawyer.

The Uniform Law Comment to Section 5335 states:

"This act will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction. The act does, however, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. It is the hope of the conference that this act will encourage states that still require the use of commissions or letters rogatory to repeal those laws."

If other states choose to follow the lead of Pennsylvania and 31 other jurisdictions, commissions and letters rogatory may become a historical footnote addressing how we used to conduct out-of-state, third-party discovery.

"Reprinted with permission from the December 24 issue of The Legal Intelligencer and Pennsylvania Law Weekly. (c) 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved."