Imagine the following, an out-of-state competitor just hired your leading salesperson. Prior to departing your business as an employee, your top salesperson misappropriates your company’s confidential client lists and proprietary information.
Next, you receive information that your former salesperson is now working for your competitor who is in Georgia and shared your company’s confidential and propriety information. Next, you sue the salesperson and the competitor in Florida state court seeking damages and an injunction that forbids them from using your confidential records. However, you will need documents and discovery in Georgia to show the court that the competitor unlawfully interfered with your contract with the salesperson and offered the salesperson financial rewards to misappropriate your confidential and propriety records. A Florida subpoena is not enough – the records are in Georgia.
In comes Florida’s Uniform Interstate Depositions and Discovery Act (“the Act”) which allows you to get those records with fewer legal hurdles at a manageable cost without in most cases having to hire a Georgia attorney or submit them to a Georgia court.
Uniform Interstate Depositions and Discovery Act (F.S.A. § 92.251)
The UIDDA went into effect in Florida on July 1, 2019, and replaced Florida’s Uniform Foreign Depositions Law.
The Act streamlines discovery for litigants who need to issue a subpoena, for records or a deposition, directed at citizens or corporations of another state. Litigants will no longer be required in the issuing state to have the responding state issue a commission provided the other state recognizes the UIDDA for document production.[1] The Act provides that a Clerk of Court can administratively “domesticate” a subpoena issued by another state court.
The Clerk of Court in the discovery state acts in a ministerial role, but in a manner that is sufficient to invoke the jurisdiction of the discovery state. The Act also minimizes judicial oversight. There is no need to present the matter to a judge in the discovery state. However, the discovery permitted by the Act must comply with the laws of the discovery state. This limitation under the Act ensures that the discovery state maintains its ability to protect its residents who become non-party witnesses in an action in another state from unreasonable discovery requests.
Drafting the Subpoena under the Act
First, the attorney checks to determine if the discovery state has adopted the Act. The Uniform Law Commission publishes a chart showing which states have enacted the UIDDA at Interstate Depositions and Discovery Act – Uniform Law Commission (uniformlaws.org). In states where the Act applies, the attorney in the trial state (Florida in the above example) prepares a subpoena in conformity with the Florida Rules of Civil Procedure. Next, the attorney checks with the clerk’s office in the county in the discovery state (Georgia in the above example) where the witness or records are located. The attorney completes the subpoena form applicable in the discovery state. The lawyer hires a process server (or local council) in the discovery state (Georgia), who will serve as the witness or custodian of records.
The Clerk’s Role in the Discovery State
Once the Clerk receives the Florida subpoena, the Clerk will issue a subpoena for service upon the person or entity in the discovery state. The discovery state subpoena must incorporate the same terms as the Florida subpoena and have the contact information for all counsel and any party not represented by counsel. The Act requires minimal judicial oversight and eliminates the need for local counsel in the discovery state, letters rogatory, or the filing of a miscellaneous action during discovery. One caveat, the subpoena must comply with the rules of the state in which the records or witness is located. Otherwise, if a certain discovery is not permitted in Georgia, a party cannot circumvent Georgia law by requesting the discovery even if permitted by Florida law.
Enforcing the Subpoena
Unless the witness or owner of the records seeks a protective order, there is no need for courts in the discovery state to rule on the lawfulness of the subpoena. A subpoena request under the Act does not constitute an appearance in the state where the witness is located. However, motions to quash, enforce, or modify a subpoena under the Act shall be brought in and governed by the rules of the discovery state, so if you anticipate a hostile non-party witness, you may want to hire local counsel to assist you in the matter.
States that Have Not Yet Adopted the Act
If the discovery state has not adopted the Act, then obtaining testimony or records from that state’s residents will be more difficult. Some of those states require the court in the discovery state to issue mandates or letters rogatory to the court in the trial state before a subpoena may issue. As of today, only six states have yet to adopt the Act: Connecticut, Massachusetts, Missouri, New Hampshire, Texas, and Wyoming. In Texas, local procedures protect residents and may require Texas counsel to obtain discovery.
Complying with Subpoenas from Outside of Florida
The Act is a two-way street. Under the Act, if a Florida business receives a subpoena issued by a County Clerk in Georgia, the business must comply with the subpoena unless it has a basis to quash or modify the subpoena under Florida Law.
An out-of-state party will need to prepare the subpoena in compliance with the Florida Rules of Civil Procedure. The Clerk must ensure that the information in the foreign subpoena appears verbatim in the Florida subpoena. Similarly, Commissions and orders are no longer necessary for out-of-state subpoenas for the production of documents and things from a non-party in Florida. Service of the subpoena must also comply with the Florida Rules of Civil Procedure. Florida law governs all subpoenas issued under the Act.
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[1] A commission is still required for deposition testimony of an out of state non-party witness