In my commercial trucking accidents law practice, we often need to subpoena business and medical records from other states, especially in interstate trucking personal injury and wrongful death litigation. In cases filed in state courts of Georgia, rather than federal courts, it has been necessary to comply with an arcane variety of differing state laws in order to do so.
Until recently in Michigan, for example, it was necessary to retain a lawyer in that state and spend roughly a thousand dollars just to get a routine subpoena for documents issued and served.
Last week, the Georgia legislature passed the Uniform Interstate Discovery and Depositions Act has finally passed in Georgia. This new uniform law, when enacted in all states, will make interstate discovery for cases in state courts almost as easy as it is in federal courts. It will enable Georgia lawyers to get subpoenas for depositions, document production and inspection of premises in other states that have enacted the same uniform law, and will make it easier for lawyers in those states to do the same in Georgia.
HB 46, sponsored by Representatives Jacobs, Lindsey, Willard, Oliver, Lane and Weldon (all friends of mine), almost passed last year but got caught in the legislative traffic jam in the Senate at the end of the 2011 session. It was one of the first substantive bills to pass this year and go to Governor Deal for signature.
This is reciprocal, and only available to lawyers when both states have passed the same law. At a meeting of the Southern Conference of Bar Presidents next week in New Orleans, I plan to make a pitch to my counterparts from other Southern states that have not yet enacted this law to put it on their State Bar legislative agendas. As shown on this map, the Southern states that have not yet passed it Alabama, Florida, Louisiana, Arkansas, Oklahoma and Texas.Those that have passed this law include Virginia, Maryland, North Carolina, South Carolina, Kentucky, Tennessee and Mississippi.
Here is what the new law provides:
(a) To request issuance of a subpoena under this Code section, a party shall submit a foreign subpoena to the clerk of superior court of the county in which the person receiving the subpoena resides. A request for the issuance of a subpoena under this Code section shall not constitute an appearance in the courts of this state.
(b) When a party submits a foreign subpoena to a clerk of superior court in this state, the clerk shall promptly issue and provide to the requestor a subpoena for service upon the person to which the foreign subpoena is directed.
(c) A subpoena under subsection (b) of this Code section shall:
(1) Incorporate the terms used in the foreign subpoena; and
(2) Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
(d) This Code section shall only apply to a subpoena to be issued in this state if the foreign jurisdiction that issued the foreign subpoena has adopted a version of the ‘Uniform Interstate Depositions and Discovery Act.’
(e) This Code section shall not apply to criminal proceedings.
(a) For purposes of this Code section, the term ‘subpoena’ shall have only the meaning set forth in subparagraph (A) of paragraph (5) of Code Section 24-10-111.
(b) In addition to the mechanism for issuing subpoenas provided for in Code Section 24-10-112, whenever any mandate, writ, or commission is issued out of any court of record in a foreign jurisdiction, a witness may be compelled by subpoena issued by the clerk of superior court of the county in which such witness resides to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.
A subpoena issued by the clerk of superior court under Code Section 24-10-112 or
24-10-113 shall be served in compliance with Code Section 24-10-23 and shall be served within a reasonable time prior to the appearance required by such subpoena.
Part 1 of Article 2 of this chapter shall apply to subpoenas issued under Code Section 24-10-112 or 24-10-113.
An application for a protective order or to enforce, quash, or modify a subpoena issued by the clerk of superior court under Code Section 24-10-112 or 24-10-113 shall comply with the statutes and court rules of this state and shall be submitted to the superior court of the county in which the subpoena was issued.”
The new law will become effective in 2013.
Ken Shigley is president of the State Bar of Georgia. His Atlanta-based law practice focuses on representation of plaintiffs in commercial trucking accident litigation involving serious injury or wrongful death. He is a board certified civil trial attorney of the National Board of Trial Advocacy.