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 been helping out-of-state counsel issue, serve, and enforce out-of-state subpoenas. And almost every case teaches me something new. I began this series with Practice Pointer No. 1: It is Georgia law that applies to service of subpoenas. And cost matters. The series continued with Practice Pointer No. 2: If personally serving the subpoena, use the best process server you can find, and tell them exactly what you need. The series continues below.
3. If the out-of-state counsel only wants documents, plan in advance for how those documents will be used in court.
As stated in the article, at the discovery stage, Georgia law, unlike federal law, only allows a subpoena to issue for a deposition—not for documents alone. O.C.G.A. § 9-11-45 (a)(1)(A). But that subpoena can also command the deponent to produce and permit inspection of “designated books, papers, documents, or tangible things.” O.C.G.A. § 9-11-45(a)(1)(C). So when out-of-state counsel only wants documents, the cover letter to the deponent can state that in lieu of appearing for the deposition, the deponent can produce documents before the deposition date.
But, before sending the cover letter, the out-of-state counsel needs to consider how the documents will be used in court. Do the documents need to be authenticated? Will the documents be admissible over any hearsay objections?
If the out-of-state counsel needs a certification or other form signed by the deponent to have the documents be admissible, that request needs to be a part of the negotiations to avoid appearing for the deposition. I would include the request for certification in the first cover letter, including a form that will satisfy any evidentiary requirements under the foreign state’s law. Georgia law does not require the deponent to certify the documents; therefore, that requirement cannot be sought in a petition to enforce a subpoena in the Georgia court.
But a court can compel a deponent to answer questions. So if the deponent produces the documents without the certification that the out-of-state counsel needs, the deponent should not be released from appearing for the deposition. The evidentiary questions can then be asked at the deposition. And the discovering party will be able to ask the court to compel the deponent to answer questions under O.C.G.A. § 9-11-37(a)(2).
So to avoid the additional expense of having to appear for a deposition, the out-of-state counsel should clarify any evidentiary requirements up front.
If I can help you issue, serve, or enforce an out-of-state subpoena in Georgia, contact me. I am also providing certain out-of-state subpoena services at a flat rate. Call me or you can click on the red Appointment tab to the right to set a time to talk with me.
