In the three years since my article Best Practices for Issuing Subpoenas: Depositions of Georgia Residents in Cases Pending Out of State was published, I’ve continued helping out-of-state counsel issue, serve, and enforce out-of-state subpoenas. And I learn something new and refine this area of my practice with almost every case. I’ll be sharing some of these pointers over the next few weeks.
Since writing the article, I’ve become a small business owner. So I am a little more connected to clients who may not want to pay an additional amount of money to personally serve a deponent. I still recommend, as I did in the article, that if the foreign state’s law requires personal service of a subpoena, then the deponent should be personally served in Georgia. But that is a recommendation, not a requirement. Complying with the more restrictive service method prevents one argument—although a rather weak one—against the validity of the subpoena. The other, less costly, methods of service are equally enforceable in Georgia. (The other methods are found in O.C.G.A. § 24-10-23: “registered or certified mail or statutory overnight delivery.”) The Uniform Foreign Depositions Act calls for Georgia procedure to apply:
[W]itnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.
O.C.G.A. § 24-10-111. I have not found a Georgia case that holds otherwise. I can’t imagine a Georgia judge applying another state’s law in determining whether the subpoena was validly served on the Georgia witness. In fact, an Alabama case has recognized that out-of-state subpoenas are to be served in accordance with the law of the deponent’s home state. In re Nat’l Contract Poultry Growers’ Assoc., 771 So. 2d 466, 469 (Ala. 2000) (also citing other cases).
Of course, there are other reasons to personally serve a subpoena: it imparts the seriousness of the proceeding to the deponent, it will be hard for a deponent to deny service, and it can usually be done quickly. But personal service is not a requirement for the out-of-state subpoena to be enforceable in Georgia.
- Practice Pointer No. 2: If personally serving the subpoena, use the best process server you can find, and tell them exactly what you need.
- Practice Pointer No. 3: If the out-of-state counsel only wants documents, plan in advance for how those documents will be used in court.
- Practice Pointer No. 4: Read the rules. Follow the rules. Then accept the gray areas.