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IBA: An Alternative to Rule 28(E) For Service of Non-Party Discovery

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By Germaine Winnick Willett and Pamela J. Heath, Ice Miller LLP
 

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willett-germaine-mug Willett

Did you know that Indiana law provides an easier way to pursue non-party discovery for use in out-of-state litigation? In 2007, the Uniform Law Commission promulgated the Uniform Interstate Depositions and Discovery Act (UIDDA) with the goal of promoting more efficient and less expensive procedures for seeking production of documents and depositions “as the amount of litigation involving individuals and documents located outside of the trial state has increased.” Indiana’s legislature adopted UIDDA in 2010. See Indiana Code § 34-44.5-1-1, et seq. Currently, approximately 30 states have adopted the Act, including Indiana’s neighbors, Michigan and Kentucky.

According to the legislative summary for Indiana Code § 34-44.5-1-1, et seq., the statute permits a litigant to present to a clerk of the court located in the county where discoverable materials are sought with a subpoena properly issued from the court in which the lawsuit pends (the “foreign jurisdiction”). Once the clerk receives a foreign subpoena, the clerk shall issue a subpoena for service upon the person or entity listed in the foreign subpoena, as long as the terms of the issued subpoena duplicate those in the foreign subpoena, and as long as the issued subpoena contains the contact information of all counsel of record and any unrepresented persons.

UIDDA does not supersede the procedure set forth in Indiana Trial Rule 28(E). If they choose, litigants may still obtain a court order (usually termed a commission or letters rogatory) from the foreign jurisdiction, and then file that order with a motion to assist out-of-state litigant in the Indiana jurisdiction where the non-party resides, in order to ask the court to direct the clerk to serve the subpoena on the non-party. However, as lawyers who have utilized this procedure know, the process set forth in Rule 28(E) can be cumbersome and time-consuming.

How does UIDDA differ from the procedure set forth in Indiana Trial Rule 28? Certainly, it eliminates the need to obtain a commission or letters rogatory from the foreign jurisdiction to be presented to an Indiana court. Under UIDDA, litigants may present a properly issued subpoena from the foreign jurisdiction directly to the clerk of the Indiana court sitting in the county where the person from whom testimony and/or documents are sought resides, and, per the statute, the clerk shall issue it for service without any involvement from the judge. Also, given the elimination of the requirement to file the commission with a motion to assist out-of-state litigant, the litigant need not retain an Indiana attorney, at least not at the outset.

It sounds simple, but here’s the rub: you may find that the clerk of the court lacks familiarity with UIDDA. As such, litigants who wish to proceed under UIDDA should contact the clerk of the court to discuss invocation of the statute. The statute does not refer to the opening of a case file, however, the clerk may nevertheless request that a miscellaneous action be filed in order to track the activity and maintain records. Though UIDDA was designed to avoid jumping through such hoops, the clerk may even instruct the litigant to file a motion to assist out-of-state litigant as the vehicle to open the action and require payment of a filing fee. At this point, retention of an attorney admitted to practice in Indiana will be necessary.

Does UIDDA permit a litigant to retain an Indiana attorney to serve the subpoena him or herself, as attorneys typically do in Indiana civil actions, so as to avoid involvement of the clerk all together? After all, Trial Rule 45 deems attorneys to be officers of the court and thereby empowers them to serve subpoenas. While this has not been tested in the courts, UIDDA likely does not go so far. First, UIDDA plainly states that “a party must submit the foreign subpoena to the clerk of the court.” The statute makes no mention of an attorney’s involvement. Second, Rule 45 limits the circumstances in which an attorney may serve subpoenas to those instances in which the attorney has appeared for the serving party. Thus, unless the Indiana attorney has appeared for the party in the foreign jurisdiction (certainly possible, but unlikely), Rule 45 does not authorize the attorney to serve a subpoena without the clerk’s involvement in any event.

As mentioned above, more than half of the states have adopted UIDDA. Indiana litigants who seek testimony or production of documents from a non-party located in another state should determine whether that state has adopted UIDDA or if it instead adheres to the more traditional commission/letters rogatory method. Additionally, good reason may exist to utilize Rule 28’s procedure instead of pursuing the discovery pursuant to UIDDA. For example, if the litigant anticipates that the target of a subpoena will resist the subpoena, having filed a motion to assist out-of-state litigant in a miscellaneous action will mean that a forum already exists to quickly resolve the discovery dispute, if and when it occurs.

UIDDA is a welcome addition to Indiana’s procedural law, because it simplifies the non-party discovery process. As the clerks in Indiana’s county courts gain familiarity with the statute, the statute’s use will undoubtedly save out-of-state litigants time and money as well as conserve judicial resources. The next time you receive a call from an out-of-state litigant seeking your help with securing a deposition or records from a non-party located in Indiana, consider whether Indiana Code § 34-44.5-1-1, et seq. is a better option for your client.•

Germaine Winnick Willett practices in the area of employment and general civil litigation at Ice Miller LLP. Pamela “PJ” Heath is a paralegal in Ice Miller LLP’s labor section.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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