I’ve been playing Zombies, Run! I take my iPhone on my run, start the app, and I hear the story between the songs on my playlist. There are also zombie chases–I have to speed up to outrun the zombies.

At first I felt strange actually tweeting about my run. And then I realized that I had left a voicemail in the middle of the day with a client saying that I would get back with him after my run. No euphemism about a meeting or a conference call. Yikes. While I know that exercise makes me a better writer and thinker, what would my clients—other attorneys—think if I’m not glued to my desk chair? That I’m less committed? Not a hard worker?

So I eagerly read this article when it appeared in my e-mail today: Run to Write: How Exercise Will Make You a Better Writer. Written by Ben Opipari, it looks at the science of how running improves your cognitive powers and creativity. Even after one run, you can think more creatively and increase your problem-solving skills. Ben digests the science into six rules. Rule #3 taught me that I should time my runs with my work for the day to make the most use of the improvement in my cognition; too often I wait until the end of the day to run. Rule #4 encouraged me to try some new routes and to get out to the river for a run.

If you are stuck on a legal issue, don’t stay at your desk and skip lunch trying to find the answer. Instead, go for a zombie run. Or maybe a quiet run to work out the issues in your head. Just get the blood flowing.

More resources:

• Subscribe to Ben Opipari’s “Pointers and Prose” newsletter.
• Subscribe (for free) to Perspectives: Teaching Legal Research and Writing through West’s subscription page.

Trial court ruled that subpoena issuance without notice is discovery abuse.

In Alegria v. Howard, No. 10-CV-10597-1, pending in the Superior Court for Dekalb County, Judge Courtney L. Johnson ruled in a January 20, 2012 order that a party willfully and intentionally abused the rules on providing notice of subpoenas when that party procured a subpoena for the production of documents without notice to the opposing counsel. In the court’s discussion of the facts, the defendants had the subpoena issued without the knowledge of the plaintiff and for a date when no deposition was scheduled. The nonparty had produced documents in response to that secret subpoena, but the defendants did not produce the documents to the plaintiff. In this case, in which the court cited several other discovery abuses, the court sanctioned the defendants by striking their Answer.

Although there were other discovery abuses that together caused the court to strike the Answer, the court’s willingness to state that obtaining a secret subpoena is a discovery abuse should alert attorneys to the importance of noticing the deposition. The court stated that defendants should “have been aware of and followed” both Advisory Opinion 40 and the mandatory notice governing depositions and subpoenas already in the rules. (O.C.G.A. § 9-11-30 (b)(1) requires notice of the deposition, and, if a subpoena has requested documents, the notice must include the list o f documents requested.) By failing to give notice, the defendants “willfully abused the discovery process and committed fraud upon the Court, Clerk, and counsel. . . .”

Lessons to learn:

1. Always provide notices of deposition and put a process in place to send an amended notice if the date changes. In Alegria, the order cites the defendants assertion that the attorney’s “secretary mistakenly forgot to send out a notice of subpoenas.” There should be a clear process and training to prevent this type of mistake.

2. If documents are requested in the subpoena, be sure to include that list of documents in the deposition notice, too. This is required by Rule 30. And another reminder to read the rules again.

3. Be familiar with the advisory opinions. The State Bar of Georgia provides a topical index to the opinions.

You can read more about this order in the Daily Report. See Katheryn Hayes Tucker, Judge: Wreck evidence hid, Daily Report, Jan. 30, 2012 (subscription required). It appears that this opinion will be appealed.

Subpoenas are powerful documents, but their power is limited. If you have a civil case outside Georgia and you want a Georgia witness to testify live at that trial, there is only one viable option: Secure the agreement of the witness to voluntarily appear.

Subpoena’s power is limited to Georgia.

A subpoena issued by a Georgia clerk is limited to compelling the witness to appear in Georgia. Even if you go through the procedure to domesticate an out-of-state subpoena through Georgia’s Uniform Foreign Depositions Act, that Act does not permit a subpoena to compel a witness to travel outside Georgia.

Use Rule 32 to present deposition testimony at trial.

But the Act does allow you to come to Georgia for a deposition. So if you need the testimony of a Georgia witness, take the witness’s deposition and present that testimony at trial. Look at your state’s rule that is similar to Federal Rule of Civil Procedure 32 to see when you can use that deposition testimony in court. It will likely state that you can use deposition testimony when the witness is beyond subpoena power—such as when the witness resides in another state.

(I can think of one other, less viable, option if permitted by your state’s rules. If the witness is served with a subpoena in your state, then the witness may be subject to that subpoena power. I would expect the witness to object on grounds that it is burdensome, but that would be a factual inquiry.)

Don’t wait. Get a Georgia subpoena for deposition.

So if you have a Georgia witness on your mind, then don’t wait until trial. Go ahead and get a Georgia subpoena to take the deposition during your discovery period. Read my article on that procedure and call me.

A note for criminal cases: Georgia has adopted the Uniform Act to Secure the Attendance of Witnesses from without the State. This Act, found at O.C.G.A. §§ 24-10-90 to -97, provides the procedure to compel witnesses from Georgia to testify in a criminal prosecution or grand jury investigation in another state.

When you need to subpoena an individual, the only ways to serve that individual are outlined in O.C.G.A. § 24-10-23. If you are seeking the testimony of a husband, but the process server hands the wife the subpoena, the court will not enforce that subpoena—such service is “fatally defective.” Even though the statute does not use the word “personal” to describe the proper service, case law does. See Lake v. Hamilton Bank of Dalton, 148 Ga. App. 348, 348-9 (1978); Heard v. Hopper, 233 Ga. 617, 618 (1975).

Even if it is the practice or custom to serve an individual through a representative (such as serving a police officer through a department representative), the Georgia Court of Appeals in a concurrence has noted that contempt for failure to respond to a subpoena can only stand when the subpoena is personally served. Apoian v. State, 313 Ga. App. 800 (2012).

Of course, you can also have the subpoena served by certified mail or “statutory overnight delivery,” which is defined in O.C.G.A. § 9-10-12(b). But in some cases—when the recipient rejects the Federal Express package, for example—you may be forced to use personal service. So be sure that you work with a qualified process server and obtain an affidavit of service so that you can enforce the subpoena.

Questions about subpoena service in federal court? See my post Subpoena service in federal court: courts are split, but personal is best.

(And if you are on the receiving end of a subpoena, you need to know what to do next.)

Originally published April 20, 2010; updated February 1, 2012.

You, as the Georgia attorney, are thinking: Can’t I just serve the Georgia subpoena and see what happens? Maybe I’ll get the documents, maybe I won’t. But if I do, I’ve saved a lot of time and money.

While the State Bar of Georgia has not answered this question, a Virginia ethics opinion has said, “No.” In 1992, Virginia Legal Ethics Opinion 1495 was issued. In that opinion, an attorney asking the court clerk to issue a subpoena that the attorney knows is unenforceable violates the prohibition on a lawyer engaging in fraud, dishonesty, deceit, or misrepresentation. The exception mentioned in the opinion is that it would not violate that prohibition if the witness agreed to accept service of the subpoena. Although the opinion does not address it, I would presume that in asking the witness to accept service there was no fraud, dishonesty, or deceit involved in obtaining that agreement.

Georgia Advisory Opinion 40 is already concerned about the misuse of subpoenas and misleading nonparty witnesses. That opinion calls for the Georgia attorney to serve and file the notice of deposition or to schedule the deposition by agreement  before having the subpoena issued. For deposition subpoenas, they should not be issued when there is no deposition scheduled. While this opinion does not address an attorney’s duties in issuing a subpoena to serve out of state, it does recognize that attorneys using subpoenas for nonparty witnesses must not mislead those witnesses. This Opinion was not issued by the Supreme Court of Georgia, but it is treated as persuasive authority. And under Rule 4.1, an attorney cannot “make a false statement of material fact or law to a third person.”

My take on those two opinions is that an attorney should not attempt to send an unenforceable subpoena outside Georgia, particularly with any kind of representation that it would be binding on the nonparty witness. A Georgia subpoena can only be served within Georgia. O.C.G.A. §§ 24-10-21; 9-11-45(a)(1)(C). So serving it outside Georgia would make it unenforceable.

Of course, there are scenarios where it could be fine to send a Georgia subpoena outside Georgia–but it would likely involve that nonparty witness accepting service of the subpoena and no statements that could mislead the witness.

So going through the other state’s proper procedures to serve a subpoena on the nonparty witness would make that subpoena, originating in Georgia, enforceable. While it will take more time and money, it will avoid the potential to mislead the nonparty witness.

*The National Association of Counties puts the number of counties at 3,068.

I also have a chart, thanks to Google, to know what my most viewed page is on the website. By far, it is the post on serving federal subpoenas. I used that post myself when doing projects on federal subpoenas.

But I grew tired of clicking back and forth. So I put all the links into a Microsoft Word chart that also serves as a checklist to make sure I’ve followed all my steps while doing the research and drafting the subpoenas. It has been very efficient for me (and my attorney-clients). I keep it saved as a template that becomes a working document. And then I can update the template if I want to expand the checklist.

Now I’m thinking about what else I can draft a checklist-chart for. It takes some time upfront, but the efficiency down the line pays off.

You can download the chart here.

But what about other states? There is now a listing of the current statutes and rules governing the process for all fifty states, D.C., and the Virgin Islands.

The Georgia Bar Journal just published my article Obtaining Out-of-State Evidence for State Court Civil Litigation: Where to Start? The article gives an overview of the various procedures–with cites to the rules and statutes–used in other states. I also included links to websites from states that have compiled helpful procedural information on where to begin in their states.

The article will give you a starting point so that state lines won’t inhibit your discovery process.