Update: Effective July 1, 2019, Florida official adopted the Uniform Interstate Depositions and Discovery Act, which is codified at Section 92.251, Fla. Stat. Adoption of the Act provides much needed simplification of the process for domesticating and enforcing out-of-state subpoenas in Florida. If you need local counsel in South Florida to assist with an out-of-state deposition, subpoena enforcement, or a protective order, Jeffrey Law, PA, stands ready to assist. CONTACT US AT: [email protected] or 305.222.7921, to schedule a consultation.
Parties involved in complex litigation must often address cross-border obstacles to depositions and other discovery. Subpoena authority in a state court action only extends insofar as the party sought to be subpoenaed is within the jurisdiction of the state from which the subpoena is issued. In other words, state court subpoena authority, without more, does not cross state lines. When a party needs to subpoena a resident of a foreign state, the process varies depending on the law of that foreign state. It is fundamentally important to follow the law of the foreign state, and the applicable processes and procedures, to ensure that any subpoena is legally valid and enforceable. After determining that the state in which the litigation is pending does not have jurisdiction over an out-of-state person or entity, a practitioner’s first step should be to research the laws of the foreign state in which the witness is located. Then, one should research the local laws or rules of the specific county of the foreign state in which the individual or entity resides. This post is designed to assist those attempting to issue a Florida subpoena in Miami-Dade County, for use in an out-of-state action.
Fortunately, some states make the adoption and enforcement of out-of-state subpoenas very simple. Many states have passed a uniform act called the Uniform Interstate Depositions and Discovery Act (UIDDA), which provides a fairly straight-forward and simple process for domestication of a foreign subpoena. UIDDA states generally allow a party from a case pending in one state to issue a legally valid subpoena in the forum state, without the necessity of a commission, and present same to the clerk of the court in the foreign jurisdiction, which will then issue a foreign subpoena adopting the original subpoena and incorporating its terms. That said, not all UIDDA states have the same rules. Some UIDDA states, for example, allow a foreign attorney to issue the UIDDA subpoena. Unfortunately, however, Florida is not a UIDDA state.
Florida has adopted the Uniform Foreign Depositions Law (UFDL), a predecessor to the UIDDA, which provides minimal guidance. Section 92.251, Fla Stat., provides that if a party to a foreign action seeks to subpoena a Florida resident, they must obtain a writ, commission, or some other form of order from the court where the action is pending, or an agreement between the parties, and only then, may “witnesses  be compelled 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.” § 92.251, Fla. Stat. “This means that the court where the deposition actually takes place, in this case, Florida, enjoys all necessary powers of enforcement as if the action were taking place in Florida, and the laws of Florida govern any proceedings incident to the deposition.” Greenlight Fin. Servs. v. Union Am. Mortg., Inc., 971 So. 2d 983, 985 (Fla. 3d DCA 2008).
Fla. R. Civ. P. 1.410(g), entitled “Depositions before Commissioners Appointed in this State by Courts of Other States; Subpoena Powers; etc.” provides further guidance. Rule 1.410 provides:
“When any person authorized by the laws of Florida to administer oaths is appointed by a court of record of any other state, jurisdiction, or government as commissioner to take the testimony of any named witness within this state, that witness may be compelled to attend and testify before that commissioner by witness subpoena issued by the clerk of any circuit court at the instance of that commissioner or by other process or proceedings in the same manner as if that commissioner had been appointed by a court of this state; provided that no document shall be compulsorily annexed as an exhibit to such deposition or otherwise permanently removed from the possession of the witness producing it, but in lieu thereof a photostatic copy may be annexed to and transmitted with such executed commission to the court of issuance.”
Courts have interpreted Rule 1.410(g) to require that, unlike when a subpoena is being issued in a Florida action (in which the subpoena may be issued by a Florida attorney or the Clerk of Court), a “commissioner” must first be appointed and the “clerk of any circuit court at the instance of that commissioner” may issue a witness subpoena. Reedy v. Safeco Ins. Co. of Am., 721 So. 2d 803, 805 (Fla. 1st DCA 1998)(“Now, the subpoena is to be issued by the Clerk of the Circuit Court at the instance of the commissioner. This apparently assumes a written request supported by a proper showing of appointment.”). Neither Section 92.251, Fla Stat. or Fla. R. Civ. P. 1.410(g) are exceptionally well-drafted or clear.
In order to compel a Florida resident to comply with a foreign subpoena, an officer authorized by the State of Florida to administer oaths (such as a court reporter) must be appointed as a commissioner by the court in the forum state. The commission need not necessarily provide a date or time for the deposition or discovery. Then, the order of commission should be presented to the Clerk of the Circuit Court for the county in which the desired witness resides, in the manner that said Clerk deems acceptable. The Miami-Dade County Clerk of Court, for example, allows the filing of the out-of-state commission as a “pleading” in and of itself, without the necessity of a corresponding petition or complaint, assesses a filing fee, and assigns a case number. Once a case number is assigned, a subpoena may be presented to the Miami-Dade County Clerk of Court for issuance by a deputy clerk, as authorized by the foreign commission, which should compel the desired deponent to appear for his/her/its deposition. That Florida subpoena should then be personally served upon the deponent pursuant to Florida law. This procedure gives the deponent, a Florida resident, an opportunity to file a motion for protective order within the Florida action that was commenced, and provides the foreign litigant desiring the deposition the ability to use Florida processes and procedures, such as orders of contempt and enforcement, to compel compliance with its subpoena through the filing of an appropriate motion.
If you are a party to a foreign lawsuit who needs to obtain subpoena authority over a Florida resident, or are a Florida resident who has been subpoenaed in an action, feel free to contact us today–Jeffrey Law, PA, stands ready to assist. CONTACT US AT: [email protected] or 305.222.7921, to schedule a consultation.
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Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Robert has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law, as well as civil and commercial litigation. Robert has been awarded an AV Rating by Martindale-Hubbell (2017 and 2018), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Robert can be found at www.jelawyers.com.