With the increasing number of people working remotely and moving from one state to another, litigants are faced with more and more witnesses and evidence located outside of Tennessee. Fortunately, parties with cases pending in Tennessee are easily able to obtain subpoena power over those individuals, entities and the documents in their possession that are relevant to the pending action. This article examines the requirements for issuing a subpoena out of state under the Uniform Interstate Depositions and Discovery Act as well as practical suggestions.

Evidence located in another state presents a challenge for litigators in nearly every type of civil case. For example, a divorce practitioner may find that a spouse has businesses located in another state. Creditors may be located out of state. Heirs may have moved. Witnesses (especially those who think they may be in trouble) disappear across state lines. Each of these situations present a challenge for securing testimony and evidence since a Tennessee court cannot enforce a subpoena served on these out-of-state persons or entities.¹

The Uniform Interstate Depositions and Discovery Act

In 2007, the Uniform Law Commission developed the Uniform Interstate Depositions and Discovery Act (UIDDA) in order to provide a more efficient and inexpensive way to depose out-of-state individuals and obtain evidence from individuals and entities located in another state.² The UIDDA has been adopted by every state except for Texas, Missouri and Massachusetts. Thus, it is the primary law every practitioner should be familiar with when faced with securing evidence that is located in another state. Prior to adopting the UIDDA, litigants would have to obtain a commission from the foreign state or file an ex parte motion in the court of the discovery state where the discovery is sought. This was an expensive quest that often required retention of local counsel.

The UIDDA process is straightforward. In Tennessee, the out-of-state attorney will submit the out-of-state subpoena to the clerk of court “in the county in which discovery is sought to be conducted[.]”³ Then, the clerk “shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.”⁴ The subpoena will incorporate the terms and language of the foreign subpoena as well as the contact information of all counsel or pro se parties.⁵

Many states who have adopted the UIDDA follow a similar procedure. Under the UIDDA, the practitioner first needs to issue a subpoena in the state in which the litigation is pending. Essentially, the subpoena will look like any other subpoena that would be served to an individual or entity within Tennessee. However, it must comply with the discovery state’s rules and statutes related to discovery. This includes giving the person or entity enough time to respond to the subpoena. Therefore, it is advisable to input a date of the deposition or production of documents further out in advance due to the time it can take to serve the foreign subpoena. For example, if you are serving an individual (as opposed to an entity with a registered agent) in another state, it would be beneficial to set the deposition date far enough in advance to file the subpoena in Tennessee, submit the Tennessee subpoena to the foreign state, then serve the individual with enough time under the foreign state’s rules for that individual to object to the subpoena. Entities with registered agents are less likely to need additional time to pad the process of serving the subpoena. Failure to provide enough time for the witness to respond could lead to objections to the subpoena and start the process over again.

‘The County in which Discovery is Sought’

After receiving the Tennessee subpoena filed by the clerk, the practitioner must determine the county in which discovery is sought in the discovery state. For entities, this is the county in which the business is located or the county in which the registered agent is located. Typically, corporations will respond to the subpoena request regardless of where the subpoena is submitted in the discovery state, especially if they have a registered agent with the secretary of state. However, as one can imagine, locating an individual witness or certain documents can prove more challenging. Thus, it is important early on in the discovery process to ask for the names, addresses and phone numbers of potential witnesses in written discovery. If additional information can be obtained during depositions (such as social media or cell phone numbers), then obtaining that information is advisable. The more information on the witness, the more likely a process server can serve the subpoena or a private investigator can successfully locate the witness.

Once you have determined the correct county to file, you are ready to file the subpoena in the discovery state and pay the corresponding filing fee.⁶ Fees range widely from a few dollars to over $200 and further vary depending on whether you have the sheriff in the discovery state serve the subpoena. Once the subpoena is filed and the fee is paid, the court clerk will enroll the subpoena and return the filed copy to your office for service, or, depending on your preference, request the local sheriff serve the subpoena.

Enforcing the Subpoena in the Discovery State

Ideally, the witness or entity will respond to the Tennessee subpoena and produce all relevant documents or appear for their deposition without objection. In practice, that is rarely the case. Witnesses and entities either will not respond or take issue with the breadth of discovery, assert privilege or otherwise attempt to limit the scope of the subpoena. So what does the Tennessee practitioner do if a foreign party does not respond or files a motion with the court in the discovery state? And, more importantly, what if the Tennessee practitioner is not licensed in the discovery state?

Surprisingly, there is little case law on whether enforcing a subpoena in the discovery state court constitutes an “appearance.” Some statutes explicitly answer this question. For example, in Oregon any motion related to the enforcement or modification of a foreign subpoena “is an appearance before the court and shall comply with the rules and statutes of this state.”⁷ On the other hand, Utah allows practitioners to enforce subpoenas “only if the other state has enacted this uniform act or provisions substantially similar to this uniform act.”⁸ In other states, the answer is not as clear. For example, in Arizona a motion to modify, compel or motion for a protective order must be filed as a separate civil action.⁹ The Arizona rule is silent on whether enforcement would constitute a notice of appearance.

It is advisable to research the language of the law in the discovery state and consider hiring local counsel or, if possible, entering a limited notice of appearance.

Conclusion

When faced with conducting discovery outside of Tennessee, a litigant should first and foremost research the discovery state’s version of the UIDDA. This will provide a roadmap for how to conduct discovery and obtain the relevant evidence needed to support your case. Be wary of inadvertently entering an appearance, though, should motion practice ensue. |||

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JOHN FLOYD JR. is a partner in the Nashville office of Wicker Smith. His practice is primarily comprised of defending doctors, clinics and hospitals in healthcare liability matters across Tennessee and Kentucky, and litigating divorces and interstate custody disputes in the Nashville area.

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NOTES

1. See Yelp Inc. v. Hadeed Carpet Cleaning Inc., 770 S.E.2d 440 (Va. 2015) (holding that trial court lacked authority to enforce a subpoena directing non-party, nonresident to produce documents). Conversely, the trial court in the discovery state has the authority to quash or modify a subpoena. See In re Aerco Intern. Inc., 964 N.Y.S.2d 900, 903 (N.Y. 2013).

2. See generally, Uniform Law Commission www.uniformlaws.org/committees/community-home?communitykey=181202a2-172d-46a1-8dcc-cdb495621d35 (accessed July 31, 2023).

3. Tenn. Code Ann. § 24-9-203(a).

4. Tenn. Code Ann. § 24-9-203(b).

5. Id.

6. It should be noted that filing your Tennessee subpoena in a UIDDA state typically does not constitute making an appearance in the courts of the discovery state. See, e.g., Ala. Code § 12-21-402(a), Ga. Code Ann. § 24-13-112(a), KRS § 421.360(3)(a). However, it is advisable to confirm this by researching the discovery state’s law before filing.

7. ORCP 38C(5).

8. U.C.A. § 78B-17-103(3).

9. Ariz. R. Civ. P. 45.1(e)(2)(c).