Can I subpoena a Georgia witness for a civil trial outside Georgia?

by Rebecca on May 11, 2015

For a state-court case, the answer is no. There is no procedure to compel a Georgia witness to travel outside Georgia for a civil trial in another state’s state court.

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.

A Georgia 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 Interstate Depositions and Discovery Act (O.C.G.A. § 24-13-110 to -116), that Act does not permit a subpoena to compel a witness to travel outside Georgia.

For a federal case, however, Rule 45(c)(1)(A) does allow a witness to be compelled to testify at a trial “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” That rule ignores a state’s boundary lines.

Use Rule 32 to present deposition testimony at trial.

But Georgia’s UIDDA 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, including the updates in this post, 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. §§ 24-13-90 to -97, provides the procedure to compel witnesses from Georgia to testify in a criminal prosecution or grand jury investigation in another state.

Note: this post is updated from a post originally published in February 2012 to address the changes in Georgia’s subpoena law and to update code sections. I also added information to distinguish the power of Federal Rule of Civil Procedure 45. -rbp

{ 1 comment… read it below or add one }

Ted Folkman February 6, 2013 at 8:40 am

Good point–for some reason lots of lawyers don’t get this until it’s too late.

There is one very narrow exception for cases being heard in federal courts in neighboring states, the 100 mile “bulge jurisdiction” of Fed. R. Civ. P. 45(b)(2)(B). So for a case being heard in federal court in Tallahassee, Chattanooga, or another city bordering Georgia, it’s possible to compel a Georgia witness who lives close to the border to attend.

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