You are litigating a case and need to produce records or obtain deposition testimony from an out-of-state witness. Easy peasy, right?
Not so fast. If your case is being litigated in federal court, then yes Rule 45 amendments make the process fairly simple. However, if you are litigating in a state court, getting a subpoena on an out-of-state witness can be tricky.
You might even be tempted to just go ahead and serve your trial state subpoena on the out-of-state witness. Don’t. In most cases, an out-of-state subpoena has no power to compel a witness in the discovery state jurisdiction. Increasingly, state bars are frowning on the practice of serving out-of-state subpoenas, and may even consider it an ethical violation. Serving a subpoena an attorney knows has no power to compel in the witness’s jurisdiction may be a violation of the attorney’s obligation to truthfulness under Model Rule 8.4.
The North Carolina State Bar certainly takes that opinion. RPC236 and the 2010 FEO #2 sound prohibitions against lawyers making misrepresentations to the subpoena recipient that the attorney has the legal authority to issue the subpoena, or misleading the recipient as to whether compliance is required by law. The NC State Bar goes as far as to call this behavior a misuse of subpoena power and a violation of Model Rule 8.4(c) against dishonesty, fraud, deceit and misrepresentation.
Other states like Vermont and Virginia have similarly explicit opinions. Even in other states without specific advisory opinions or rules in this area, prudence may dictate that an attorney not serve a subpoena that has no power to compel if the clear language of the subpoena indicates compulsion under penalty of law.
Fortunately, there is a solution: subpoena domestication. Simply put, subpoena domestication involves taking an out-of-state subpoena from the trial or litigating state, and transforming it into a subpoena that has the force of law in the witness or discovery state. Subpoena domestication used to be in most states a cumbersome and expensive process, whereby commissions and letters rogatory from the trial court and independent actions by licensed attorneys in the discovery state were required. Today, most states have adopted more streamlined processes for subpoena domestication.
Consequently, there is no good reason to avoid proper domestication of interstate subpoenas. Don’t get tagged by your state bar or disciplinary board for ethics violations. Don’t get called out by the other side with a subpoena that has zero force of law.
Get those subpoenas domesticated, practitioners!
David Williams, Esq., is Chief Executive Officer of Presto Servers, Inc. He can be reached at firstname.lastname@example.org.