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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. 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)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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