To conclude the series, I end with where I start.
It doesn’t matter how many times I have helped out-of-state attorneys have subpoenas issued and served in Georgia. Every time I read the rules. I have the commission, the notice of deposition, and the draft subpoena on my screen and my rule book open. Then I ask myself the following questions:
Where can the deponent be compelled to attend a deposition? Look at O.C.G.A. § 9-11-45(b) for the three options.
Is the right court issuing this subpoena? In O.C.G.A. § 9-11-45(a)(1)(A), for an out-of-state case, it must be a court of record in the county where the deposition is to be taken. Note that I prefer the superior court to issue the subpoena because the contempt powers are broader. I want a court issuing the subpoena to be in one of the counties where the deponent can be compelled to attend. I double-check the counties by using the USPS website. Remember, Atlanta addresses can be in Fulton or Dekalb county, so always check.
Are witness fee and mileage fees required for valid service of the subpoena? O.C.G.A. § 24-10-24 has the requirements for when the fees are required: “when a witness resides outside the county where the testimony is to be given.”
But these statutes don’t always answer every question. For example, the statues don’t answer these questions: How do you take a deposition when you cannot give much notice? What if I only want documents from the deponent? How do you provide the mileage fee if you don’t know the deponent’s home address? How do I serve someone who is evading service?
So I’ve learned to accept the gray areas and use my professional judgment. Earlier in my legal career I would be frustrated if everything was not set out in a perfect checklist, but now I see that the gray areas are where there is room for creativity. Yes, there are boundaries, but it’s rewarding to work out a solution that gets the testimony and documents that the out-of-state attorney needs.
Contact me if I can help with any out-of-state subpoena issues in Georgia.
Here are the earlier posts in this series:
- Practice Pointer No. 1: It is Georgia law that applies to service of subpoenas. And cost matters.
- 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.