(Update: The post below has been updated to reflect current Georgia law, including the updated code sections that went into effect January 1, 2013.)
In the five 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.
There are two procedures in Georgia to have out-of-state subpoenas issued: under the UIDDA and the UFDA. Under the UIDDA procedure, a subpoena can be issued for documents alone. But, as stated in Best Practices for Issuing Subpoenas, Georgia law only allows a subpoena to issue for a deposition—not for documents alone. O.C.G.A. § 9-11-45 (a)(1)(A). And this requirement was made explicit in the revised UFDA. See O.C.G.A. § 24-13-113(a) (limiting the definition of “subpoena” to the definition of subpoena under O.C.G.A. § 24-13-111(5)(a), a subpoena that requires a person to “[a]ttend and give testimony at a deposition”). 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 and is following Georgia’s UFDA procedure, 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 serving the subpoena under either procedure, 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, then that request may need to be negotiated, and part of the negotiation may be to avoid appearing for the deposition. So if a certification is required, then even under the UIDDA procedure, which allows for a subpoena for documents alone, the out-of-state counsel may still need to have a subpoena for testimony issued. 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).
The out-of-state counsel should consider any evidentiary requirements before having the subpoena issued—it will bear on both the type of subpoena issued and negotiation strategy.