New subpoena procedures in effect under UIDDA

(Post below is updated with the code sections that went into effect on January 1, 2013, under Georgia’s revised evidence code. Only the code sections have changed; the text is the same. – RBP)

Yesterday the UIDDA, as drafted in HB 46, went into effect in Georgia. Here are the highlights:

1. There are now two procedures for issuing subpoenas in Georgia for out-of-state matters, the UIDDA and the UFDA:

UIDDA: Under O.C.G.A. § 24-13-112, the general procedure under the UIDDA is to present the foreign subpoena to the clerk and the clerk will issue the Georgia subpoena, which must include the terms of the foreign subpoena and the contact information for all counsel of record in the underlying proceeding. But this procedure only applies “if the foreign jurisdiction that issued the foreign subpoena has adopted a version of the ‘Uniform Interstate Depositions and Discovery Act.’” This is the reciprocity provision that was added. From my recent article and updated research those jurisdictions are:

*Hawaii, Oregon, South Dakota, Vermont, and Washington have adopted the UIDDA since the publication of the article.

UFDA:  HB 46 also kept the UFDA. See O.C.G.A. § 24-13-113. If the out-of-state action is pending in a state that has not adopted the UIDDA, this section applies. One change from the former law, however, is that it must be issued by the clerk of the county where the witness “resides.” Despite the new definition for “subpoena” under the UIDDA, the UFDA only incorporates part of the new definition of “subpoena,” keeping it in line with the former law; the subpoena must still be issued for testimony. See O.C.G.A. § 24-13-113(a) (limiting the definition of “subpoena” to a subpoena that requires a person to “[a]ttend and give testimony at a deposition”).

2. HB 46 changes the definition of “subpoena” for purposes of out-of-state subpoenas under issued under the UIDDA. Under revised O.C.G.A. § 24-13-111, “subpoena” means a document “issued under authority of a court of record requiring a person to:

(A) Attend and give testimony at a deposition;

(B) Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of such person; or

(C) Permit inspection of premises under the control of such person.”

Under this definition it is clear that if you only want documents, you no longer need to include a deposition; a subpoena can be issued for documents alone. Note, however, that there is still no procedure for authenticating the records, so you may still need a deposition. See my 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. And for subpoenas issued under the UFDA, it must still be a subpoena for testimony.

3. Out-of-state subpoenas must be issued from the county in which the witness resides. Under both procedures, the subpoena can only be issued by the clerk of the superior court of the county in which the person receiving the subpoena “resides.” O.C.G.A. § 24-13-112(a) (UIDDA); O.C.G.A. § 24-13-113(b) (UFDA). This seems to override the alternative locations where a person can be compelled to give deposition testimony in O.C.G.A. § 9-11-45(b), including the 30-mile rule. It also raises questions about where a witness “resides.” How will corporations be analyzed? What if you can’t find information on where the witness resides?

As we work through the new procedure, I’ll be writing about the transition. I’m still offering assistance with issuing out-of-state subpoenas for a flat fee, so contact me or email me if I can help.

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