Dealing with the Limitations of Virginia’s Subpoena Power When Discoverable Information Is Located In D.C. or Maryland

Fewer aspects of civil litigation make me groan louder than attempting to obtain a subpoena in a foreign jurisdiction to obtain testimony or documents for a case pending in Virginia state court. Reading about getting a “commission” or dealing with a “letter rogatory” makes me want to run and hide (or at least remove the case to federal court, where practitioners enjoy nationwide subpoena power). Over the years, we’ve obtained subpoenas from California, Pennsylvania, Illinois, the District of Columbia, and Maryland. Despite the passage in each of these states of some form of the Uniform Interstate Depositions and Discovery Act–which is supposed to streamline the procurement of foreign subpoenas–obtaining a foreign subpoena remains a complicated and contradictory matter, confusing attorneys and jurisdictions alike. So let me save you a bit of trouble and share with you some key things you’ll want to know in order to get your subpoenas issued with a minimum of delay and hassle.

First, a few preliminary considerations: my best rule of thumb is to pick up the phone and call the clerk of the court located in the jurisdiction in which you need a subpoena, and be as nice, warm, and polite to that person as you’re capable of being. Clerks are people too, and much of the day, they have demanding attorneys barking at them, ignorant parties asking questions they can’t answer, and too much to do with not enough time to do it. Establishing some rapport with the clerk can go a long way if you’re trying to extract information and obtain what you need promptly.

Next, if you’re issuing a witness subpoena, call or email the deponent to see if the date you’ve chosen is convenient for the witness. Witnesses tend to be more cooperative when you consider their schedule. You are not the only one with a busy workweek.

I also recommend trying to reach an agreement with opposing counsel that each of you will accept service of each other’s subpoenas directed to people or entities that are effectively within that party’s control. It will save your client a lot of money in process-server fees, and save you a lot of time, if opposing counsel will accept service of, for example, all subpoenas addressed to his/her client’s employees.

If the above fails, here are some general guidelines that may help in your multi-jurisdictional practice in the D.C. Metropolitan paperwork.jpgarea.

First of all, for a D.C. or Maryland court to issue a foreign subpoena, you do not need to request an Order of Commission or obtain a letter rogatory from your Virginia state court. Neither an Order of Commission nor letter rogatory, while permissible, is necessary. Courts in Maryland and the District will accept a certified copy of a Virginia subpoena, which brings me to my next general guideline:

Call the Virginia court and find the clerk responsible for certifying subpoenas. Once you learn the identity of the person you’ll be dealing with, physically go to the courthouse with your subpoenas and meet that person. Discuss the process. Ask about the clerk’s kids, commiserate about traffic, etc. Clerks are just people who appreciate the human interaction and tend to be more helpful when attorneys don’t condescend or treat them like subordinates. Once you’ve established a relationship, the Virginia clerk will most likely be willing to certify subpoenas any time you messenger them to the court. But show some consideration if you want a quick turnaround. Call the clerk first to determine the hours (s)he will be there that day. If you’re really nice, they may certify it while you or your messenger waits, and you can get the certified subpoena back the same day. Impossible, you say? No, it’s true. I’ve done it.

Include a copy of each subpoena and enclose a $2 fee per subpoena. Only one check is necessary if you need several subpoenas certified, but the cost is still $2 per subpoena. Attach a cover letter stating that the laws of the other state extend substantially similar mechanisms as those in the Commonwealth to obtain discovery from out-of-state parties. This requirement is codified in Va. Code § 8.01-412.8 et seq. (and specifically, § 8.01-412.10).

Now you are in business and you can attempt to get your subpoena domesticated where your witness resides.

To obtain a foreign subpoena in D.C., you need:

a) A certified Virginia subpoena and one copy;
b) A document listing all parties’ names, numbers, and addresses. This can literally be a white piece of paper with the contact information–no Line, Praecipe, or even case caption needed;
c) Three copies of the D.C. form subpoena completed with the same information as in the Virginia subpoena. Leave the case number blank;
d) A check made payable to “Clerk, DC Superior Court” for $10 per subpoena; and
e) A request that the foreign subpoenas be issued pursuant to D.C. Code § 13-443.

That’s it. If you bring it directly to the clerk in Room 5000 and wait, it’s possible that you can get your DC subpoena the same day. Especially if you follow the general cardinal rule: be nice to the clerk. I know those of you who practice in DC are shaking your heads at this post, but believe me when I say it can be done.

Obtaining a foreign subpoena in Maryland‘s circuit courts tends to be a bit more convoluted, mainly because the circuit courts require some different documents and fees. Generally, they all do require the Virginia subpoena and a copy, a fee, and a Line or Praecipe.

The Line should include the following information:

1) the name of the deponent;
2) the date, time, and location of the deposition; and
3) the contact information for all parties.

You’ll need to advise the court (I do it by cover letter) that the Virginia court certified the subpoena, and request subpoenas pursuant to the Annotated Code of Maryland, Courts & Judicial Proceedings, § 9-402. You should also provide the Virginia court case number and where the trial is set to be held and advise how you want the subpoena served.

As for filing fees, in Montgomery County, Anne Arundel County, and Prince George’s County, you must include a check for $80.00 for your subpoenas. This is not $80.00 per subpoena, but rather one fee for all of your subpoenas for that case–if you submit them at the same time. Inexplicably, in Frederick County, the fee for any group of subpoenas or a subpoena is just $25.00. All checks should be made payable to “Clerk of the Circuit Court.”

Finally, the Prince George’s County Circuit Court requires one extra document: an Affidavit (or Declaration) stating that the subpoena sets forth the deponent’s last known address. Why? I don’t know, but it’s an extra requirement to be aware of if you’re seeking to subpoena a witness who resides or works in PG County.

That’s it, and don’t forget the cardinal rule: be kind to the court clerks.

by Amy Epstein Gluck – Contributor

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