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.
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.
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.
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.
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!
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.
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.