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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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