A Georgia witness has no excuse to ignore a subpoena based simply on the fact that the case is pending outside Georgia.
That’s the shortest answer I can give. Both federal and Georgia law allow parties in cases pending in other states to obtain testimony and documents from nonparty witnesses outside that state.
But you do not have to automatically comply with the subpoena. Your response to an out-of-state subpoena, like any other subpoena, should only be formulated after considering several factors.
What do you mean by “out-of-state subpoena”?
Federal subpoenas in civil matters can be issued by attorneys and served on witnesses even outside the state where the federal matter is pending. And those subpoenas, if issued out of the appropriate federal district, can be enforceable in Georgia courts.
For state-court civil matters where an attorney wants to depose a Georgia witness, Georgia has enacted the Uniform Foreign Depositions Act, which allows testimony to be taken in Georgia using the same procedures that are used for Georgia cases. I’ve discussed this process in an article and subsequent posts. For a state-court case you need a subpoena signed by a Georgia clerk—the attorney from the other state cannot serve a subpoena signed by an Alabama clerk or attorney, for example. Such a subpoena should not be enforceable in a Georgia court.
There are even circumstances where a subpoena can be issued for an arbitration pending outside Georgia.
What do you mean by “have to comply”?
Valid subpoenas are enforceable by courts—a judge could hold you in contempt if you fail to comply. But you don’t have to automatically comply—there can be a range of creative responses.
Negotiation may be able to cure any concerns you have. Is the deposition date inconvenient? It could be changed. Is it too costly to produce the documents requested? An attorney could help you negotiate a change in the scope of documents. Or the party seeking the documents may agree to pay your costs in producing the information.
If negotiation is not an option, then you could either serve objections or file a motion for a protective order. The applicable rules may also impose a deadline for serving or filing objections or a motion for protective order. The best course will depend on whether it is a federal or state subpoena and whether documents or testimony or both are sought. Finally, no analysis is complete without looking at the claims and facts in the underlying case and your connection to that case.
And for out-of-state subpoenas, you also want to make sure that it was issued with the correct procedure. Did the court sign a commission, for example, authorizing the Georgia clerk to issue the subpoena?
Whatever your response is to the subpoena, ignoring it is the worst response.
Do I need an attorney?
Hiring an attorney can help you decide your best response to a subpoena. The attorney can determine whether it is a valid subpoena and whether you have reasonable objections to bring to the court’s attention. The attorney can also draft, file, and serve the papers necessary to bring your objections to the court. Yes, hiring an attorney is an additional cost, but it can save you money in the long-term and it can ease your mind. Be sure to get an estimate before you retain the attorney.
What should your attorney ask you? Read my post Served with a subpoena? Here’s what I’ll ask you.
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