Posted on Nov 19, 2014 by David C. Marshall
Just because a lawsuit originates in a particular state does not mean that all relevant information or people will be neatly located in that same state. For instance, what if you file a claim in South Carolina against a North Carolina-based business, and the records you need to review and the people you need to depose are also in North Carolina? If the case were filed in federal court, the court’s subpoena power would extend to all fifty states. However, if the case were filed in state court, the South Carolina court would not have subpoena powers beyond the state’s borders.
In the past, this inconvenient reality required parties to jump through a number of hoops to obtain the desired information or depositions. Counsel would need to seek a writ of commission from a South Carolina court in order to domesticate a South Carolina subpoena in the foreign jurisdiction (e.g., North Carolina). The process could be costly, time-consuming, and painful.
Fortunately, an increasing number of states – including South Carolina – have signed on to streamlined measures by adopting the Uniform Interstate Depositions and Discovery Act. The Act, which was drafted in 2007 by the National Conference of Commissioners on Uniform Law States, provides simple procedures for courts in one state to issue subpoenas for out-of-state document requests and depositions. It applies if both the state in which the action is pending and the state in which discovery is sought have adopted the Act. South Carolina adopted the Act in 2010, and it can be found at S.C. Code § 15-47-100, et seq.
Generally, the Act allows a South Carolina lawyer to issue a South Carolina subpoena directed to a non-South Carolina person or entity, and send it to the clerk of court in the county, district, or parish in the state where the discovery is sought. The clerk of court in that state then issues a local subpoena for service upon the person or entity whom the South Carolina subpoena was directed, incorporating the same terms. That subpoena is then served pursuant to the state’s local procedural rules. As North Carolina also has adopted the Act, our example case could use these simplified measures to pursue discovery against persons and companies in North Carolina.
According to the Uniform Law Commission website, thirty-four jurisdictions have adopted the Act so far, including all neighboring states. An overview of the Act, and the state-specific procedures for jurisdictions that have adopted it, can be found here.
When seeking out-of-state discovery or depositions, these simplified procedures can lead to significant time and cost savings, which are welcomed benefits in the midst of a lengthy legal process.