OHIO BECOMES LATEST STATE TO ADOPT UNIFORM DEPOSITION AND DISCOVERY ACT

On June 14, 2016 Governor John Kasich signed Ohio’s version of the Uniform Interstate Deposition and Discovery Act (“UIDDA”) into law, which will soon replace Section 2319.09 of the Ohio Revised Code in its entirety. While it will not directly affect Ohio practitioners handling cases in state, it is a good excuse to revisit the basics of this uniform act that greatly streamlines the process of obtaining out-of-state discovery from non-parties and should make the life of lawyers involved in multi-state litigation somewhat less stressful.

The inherent problem with obtaining out-of-state discovery has always been that the court in which the action is taking place has no jurisdiction over the potential deponent, and thus no way to enforce a subpoena. For years, obtaining out-state-discovery was made difficult by the patchwork of state laws and court practices that included some jurisdictions that had adopted various uniform acts and others that required opening up a “miscellaneous action” in the potential deponent’s home state, with many also requiring getting “letters rogatory” from the court in which the action was taking place.

Recently, however, states have begun adopting the Uniform Interstate Deposition and Discovery Act of 2007, which seeks to streamline obtaining out-of-state discovery. Since its introduction in 2007, it has been adopted in over 35 states and is currently pending in Arkansas (Vermont is the only New England state to adopt the Act and at this point, the two largest states not to adopt it are Florida and Texas).

When a state adopts the UIDDA, it essentially allows the enforcement of foreign subpoenas in that state and that enforcement is more administrative than judicial in nature. The party seeking discovery submits the foreign subpoena to the clerk of courts in the trial court where the discovery is sought and that clerk then serves a new subpoena to the witness under the laws and procedural rules of the discovery state, incorporating the terms of the original out-of-state subpoena.

Because the UIDDA does not require a miscellaneous action to be filed and does not constitute an appearance by the originating attorney, there is no need to hire local counsel in the “discovery state.” It should be noted though that the majority of the versions already adopted provide that any attempt to enforce or quash the subpoena must be made by motion to the court in the discovery state so if there is a dispute regarding the subpoena, the initiating attorney will probably have to hire local counsel. However, the Act clearly makes initiating the out-of-state discovery process much less cumbersome on the initiating attorney and should make for a vastly improved and less stressful procedure going forward.

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