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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
 

heath-pamela-mug Heath
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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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