Unlike the patchwork of state rules governing out-of-state discovery, federal rules make it much easier to get documents and testimony outside state lines. When you, as the attorney, need testimony or documents from a witness in a federal judicial district in which you are not admitted, you may need local counsel—an attorney admitted to practice in the district of the “issuing court.” But this local counsel is generally not needed until compliance with the subpoena is in jeopardy.
No local counsel is required to issue or serve federal subpoena, but you need to lay the groundwork for an enforcement action.
As an attorney authorized to practice in the court where the action is pending, you can issue the subpoena. Fed. R. Civ. Proc. 45(a)(3)(B). So, first, caption the form with the correct “issuing court.” (The Administrative Office of the U.S. Courts posts the fillable forms online—see forms AO 088A and AO 088B—to make this step easy.) Rule 45 governs which court can issue the subpoena: for a deposition, it is where the deposition is to be taken; for production of documents or an inspection, it is where the production or inspection is to be made. Pay special attention to where the subpoena can be served under Rule 45(b)(2) and how a subpoena can be quashed under Rule 45(c)(3) to identify the correct “issuing court.”
Next, hire a reputable process server so that you can get a good Proof of Service if needed. Be sure to include any witness and mileage fees required under Rule 45(b)(1).
Finally, as the issuing attorney, don’t forget to serve a notice of the deposition as required by Rule 30(b)(1) or notice of the production of documents as required by Rule 30(b)(2) and Rule 45(b)(1).
All of this will lay the proper groundwork for local counsel to enforce the subpoena.
Local counsel is needed for a contempt action, a motion to compel, or to respond to a motion to quash or modify the subpoena.
When the person is served with the subpoena, there will be different responses, some of which will require the assistance of local counsel to enforce the subpoena.
1. If the person served does nothing, including failing to appear for a deposition, then local counsel could bring a contempt action in the issuing court under Rule 45(e).
2. If the person served provides written objection to producing documents or inspecting a premises under Rule 45(c)(2)(B), then local counsel for the serving party could move the issuing court for an order compelling production or inspection under Rule 45(c)(2)(B)(i).
3. If the person served moves to quash or modify the subpoena under Rule 45(c)(3), then the serving party will need local counsel to respond to that motion.
While not necessary, it may be helpful to contact potential local counsel before the subpoena is served so that you can move quickly should you meet resistance on the subpoena.
If you need assistance in the Northern District of Georgia, which includes the Atlanta area, contact me.
Resources for federal subpoenas:
- Federal subpoena forms
- USPS Zip Code Lookup to identify the correct county
- 28 U.S.C. § 90 to identify the federal district court for the Georgia county
- 28 U.S.C. § 1821 for federal witness and mileage fees
- Georgia Secretary of State’s office to find information on Georgia corporations
- Subpoena service in federal court: Courts are split, but personal is best
- Not an attorney, but you were served with a Northern District of Georgia subpoena? See my services for Nonparty Subpoenas.