Obtaining records or testimony from third party witnesses outside of California is not always an easy or straightforward process. Although California Code of Civil Procedure § § 2026.010 and 2028.010 allow a party to obtain non-party discovery from witnesses outside of California, a subpoena issued in California but served to a non-resident witness has no legal effect. Accordingly, the subpoena must be issued in the state where the deposition is to be taken.
Before beginning the process of issuing a subpoena to a non-resident witness, there are a few considerations to discuss within the legal team and with the client.
Before You Start:
- Understand that foreign subpoenas can be very time consuming, tedious and expensive. It’s important to discuss the value of the records or testimony with the client and legal team to determine if they will be worth the expense.
- Determine if the records you want are public information. If the records are public information, you can usually obtain them via a Public Information Act (PIA) request or Freedom of Information Act (FOIA) request, and you do not have to copy the other parties on them.
- If the records are not public information, see if you can get an authorization signed by the party/patient.
- If you cannot get an authorization or obtain the records via PIA or FOIA requests, check and see if the entity has a resident agent in the state and/or calling and asking them. You can also call and ask them if they will accept a foreign subpoena. Some providers will accept foreign subpoenas.
- If none of these are an option, start the process to obtain a foreign subpoena.
Step 1: Determine whether the state has adopted a form of the UIDDA.
The Uniform Interstate Depositions and Discovery Act (UIDDA) is a model statute adopted to establish a uniform process for obtaining discovery with other participating states. The process tends to be simpler and faster in states that have adopted the UIDDA. In some states that have not adopted the UIDDA, you may need to retain local counsel to open a miscellaneous action for you.
As of the time of this writing, all states have enacted a form of the UIDDA except Connecticut, Massachusetts, Missouri (introduced in 2022 but not yet enacted), Oklahoma, New Hampshire, Texas, and Wyoming. The Uniform Law Commission monitors the status of states’ adoption of the UIDDA and keeps an updated map at the following website.
Step 2: Determine what court should issue the subpoena.
California Code of Civil Procedure § 2026.010(c) states, “…a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the state, territory, or insular possession where the deposition is to be taken…”
This only takes you as far as the State. You will also need to know which County and often even which courthouse the subpoena will need to be issued from. This is typically based on the address where the witness is located.
Step 3: Call the foreign court!
We can hear the facepalms already! But, this is the most important aspect of issuing a foreign subpoena. You must speak with a court clerk who can guide you. Following the letter of the law in the foreign jurisdiction will only take you so far. Specific forms, fees, and procedures vary from county-to-county and court-to-court, and some courts will kick the subpoena back for the smallest of errors.
Some courts that haven’t adopted the UIDDA will require a Commission for Out of State Discovery, Letters Rogatory, or Order from the California court. Be sure to find out exactly what is needed, whether the original signatures are required, and who must sign the document. Some courts require original Commissions signed by the Clerk of Court, while others will permit copies. Again, every court is different.
Step 4: Gather and File Your Documents
The necessary documents and procedures are different for each court. Some courts permit eFiling, while others require you to retain a local messenger service to bring the papers in person, and others still will accept your filing via FedEx. This is where your conversation with the Court Clerk will really come in handy!
Step 5: Serve the Subpoena
Once you receive the issued subpoena back from the foreign court, calendar your service dates. You must comply with all California notice rules as well as all rules in the foreign jurisdiction. For instance, if you are seeking Consumer Records, you must wait out the Notice to Consumer hold period pursuant to California Code of Civil Procedure § 1985.3(b), as well as any witness notice requirements established by the foreign court.
Once the dates are known, you can arrange for Service of Process with a local process server. Your usual California Service of Process vendor may have an affiliate who can assist with this, or you can seek out a Process Server directly. The National Association of Professional Process Servers (NAPPS) has a directory that you can search by zip code here.
Tips and Tricks
- Always set your deposition date out far enough to accommodate a specific court’s turnaround times and notice/hold requirements. Depending on the location and where the state has adopted the UIDDA, it can take mere days on the low end, or even 2+ months to issue a foreign subpoena. Bear in mind that your local California court might take extra time to ussie a Commission, if required.
- If you hire out an out of state attorney to assist in filing a miscellaneous case in the foreign court, try to use a firm that has assisted your firm with foreign subpoenas before.
- When mailing documents to a court or providing a return envelope for the stamped subpoena, use a service that provides tracking, such as FedEx, so that you can track it and ensure it will be received timely.
Sheri Webb, Assistant Director, Subpoena Operations
Sheri brings 27 years of legal experience to her role leading California Subpoena Operations at Array. She began her career in Intellectual Property and Corporate Law before spending over a decade as a Legal Secretary and Paralegal specializing in complex civil litigation. With a deep understanding of legal procedures and a passion for supporting legal professionals, Sheri ensures seamless subpoena operations while providing expert guidance to clients navigating complex record requests. A dedicated industry leader, she has also served on the Board of Directors for the California Alliance of Paralegal Associations and the Orange County Paralegal Association.
