GSNC

NORTH CAROLINA COMMENT

Session Law 2011-247 addressed two fundamental categories of interstate discovery involving the North Carolina state courts: (1) parties to an action pending in a foreign jurisdiction, as defined in G.S. 1F-2, seeking discovery from a non-party person as defined in G.S. 1F-2, residing in North Carolina; (2) parties to an action pending in North Carolina state court seeking discovery from a non-party person residing in a foreign jurisdiction. G.S. 1F-1 through 1F-7, enacted by Section 1 of Session Law 2011-247, address the first category and are based upon the Uniform Interstate Depositions and Discovery Act as drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The remaining sections of Session Law 2011-247 addressed the second category, corresponding amendments to rules of procedure, and were drafted by a joint committee within the Litigation Section of the North Carolina Bar Association. The drafting committee chose to include North Carolina specific commentary where appropriate for this Chapter. The committee believes the remainder of Session Laws 2011-247 was self-explanatory and did not require further comment to the rules of procedure.

§ 1F-1. Short title.

This Chapter may be cited as the "North Carolina Uniform Interstate Depositions and Discovery Act."

History

(2011-247, s. 1.)

Editor's Note. - Session Laws 2011-247, s. 5, made this chapter effective December 1, 2011, and applicable to all cases then pending or filed on or after that date.

§ 1F-2. Definitions.

The following definitions apply in this Chapter:

Foreign jurisdiction. - A state other than North Carolina.
Foreign subpoena. - A subpoena issued under authority of a court of record of a foreign jurisdiction.
Person. - An individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
State. - A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
Subpoena. - A document, however denominated, issued under authority of a court of record requiring a person to:
1. Attend and give testimony at a deposition, either oral or upon written questions;
2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
3. Permit inspection of premises under the control of the person.

History

(2011-247, s. 1.)

OFFICIAL COMMENT

This Act is limited to discovery in state courts, the District of Columbia, Puerto Rico, the United States Virgin Islands, and the territories of the United States. The committee decided not to extend this Act to include foreign countries including the Canadian provinces. The committee felt that international litigation is sufficiently different and is governed by different principles, so that discovery issues in that arena should be governed by a separate act.

The term "Subpoena" includes a subpoena duces tecum. The description of a subpoena in the Act is based on the language of Rule 45 of the FRCP.

The term "Subpoena" does not include a subpoena for the inspection of a person (subsection (3)(C) is limited to inspection of premises). Medical examinations in a personal injury case, for example, are separately controlled by state discovery rules (the corresponding federal rule is Rule 35 of the FRCP). Since the plaintiff is already subject to the jurisdiction of the trial state, a subpoena is never necessary.

NORTH CAROLINA COMMENT

The definition of "Subpoena" was modified to make it expressly applicable to subpoenas not only for oral depositions, but those upon written questions as permitted by Rule 31 of the North Carolina Rules of Civil Procedure.

Editor's Note. - Session Laws 2011-247, s. 4, provides: "The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Interstate Depositions and Discovery Act and all explanatory comments of the drafters of this act as the Revisor may deem appropriate."

§ 1F-3. Issuance of subpoena.

To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this State. A request for the issuance of a subpoena under this act does not constitute an appearance in the courts of this State.
When a party submits a foreign subpoena to a clerk of court in this State, the clerk, in accordance with that court's procedure, shall promptly open an appropriate court file, assign a file number, collect the applicable filing fee pursuant to G.S. 7A-305(a)(2), and issue a subpoena for service upon the person to which the foreign subpoena is directed.
A subpoena under subsection (b) of this section must:
1. Incorporate the terms used in the foreign subpoena; and
2. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

History

(2011-247, s. 1.)

OFFICIAL COMMENT

The term "Court of Record" was chosen to exclude non-court of record proceedings from the ambit of the Act. The committee concluded that extending the Act to such proceedings as arbitrations would be a significant expansion that might generate resistence to the Act. A "Court of Record" includes anyone who is authorized to issue a subpoena under the laws of that state, which usually includes an attorney of record for a party in the proceeding.

The term "Presented" to a clerk of court includes delivering to or filing. Presenting a subpoena to the clerk of court in the discovery state, so that a subpoena is then issued in the name of the discovery state, is the necessary act that invokes the jurisdiction of the discovery state, which in turn makes the newly issued subpoena both enforceable and challengeable in the discovery state.

The committee envisions the standard procedure under this section will become as follows, using as an example a case filed in Kansas (the trial state) where the witness to be deposed lives in Florida (the discovery state): A lawyer of record for a party in the action pending in Kansas will issue a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). That lawyer will then check with the clerk's office, in the Florida county or district in which the witness to be deposed lives, to obtain a copy of its subpoena form (the clerk's office will usually have a Web page explaining its forms and procedures). The lawyer will then prepare a Florida subpoena so that it has the same terms as the Kansas subpoena. The lawyer will then hire a process server (or local counsel) in Florida, who will take the completed and executed Kansas subpoena and the completed but not yet executed Florida subpoena to the clerk's office in Florida. In addition, the lawyer might prepare a short transmittal letter to accompany the Kansas subpoena, advising the clerk that the Florida subpoena is being sought pursuant to Florida statute ____ (citing the appropriate statute or rule and quoting Sec. 3). The clerk of court, upon being given the Kansas subpoena, will then issue the identical Florida subpoena ("issue" includes signing, stamping, and assigning a case or docket number). The process server (or other agent of the party) will pay any necessary filing fees, and then serve the Florida subpoena on the deponent in accordance with Florida law (which includes any applicable local rules).

The advantages of this process are readily apparent. The act of the clerk of court is ministerial, yet is sufficient to invoke the jurisdiction of the discovery state over the deponent. The only documents that need to be presented to the clerk of court in the discovery state are the subpoena issued in the trial state and the draft subpoena of the discovery state. There is no need to hire local counsel to have the subpoena issued in the discovery state, and there is no need to present the matter to a judge in the discovery state before the subpoena can be issued. In effect, the clerk of court in the discovery state simply reissues the subpoena of the trial state, and the new subpoena is then served on the deponent in accordance with the laws of the discovery state. The process is simple and efficient, costs are kept to a minimum, and local counsel and judicial participation are unnecessary to have the subpoena issued and served in the discovery state.

This Act will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction. The Act does, however, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. It is the hope of the Conference that this Act will encourage states that still require the use of commissions or letters rogatory to repeal those laws.

The Act requires that, when the subpoena is served, it contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel. The committee believes that this requirement imposes no significant burden on the lawyer issuing the subpoena, given that the lawyer already has the obligation to send a notice of deposition to every counsel of record and any unrepresented parties. The benefits in the discovery state, by contrast, are significant. This requirement makes it easy for the deponent (or, as will frequently be the case, the deponent's lawyer) to learn the names of and contact the other lawyers in the case. This requirement can easily be met, since the subpoena will contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record and of any party not represented by counsel (which is the same information that will ordinarily be contained on a notice of deposition and proof of service).

NORTH CAROLINA COMMENT

The Uniform Law Commission's official comment regarding the scope of the phrase "Court of Record" applies only to foreign state subpoenas. If the laws of the foreign state permit an attorney of record for a party in the proceeding to issue a subpoena without involvement from the clerk of court, such a subpoena is sufficient authority under this statute for issuance of a subpoena within North Carolina subject to other applicable rules of procedure and professional conduct. However, the official comment does not eliminate the requirement that the North Carolina subpoena be issued by the clerk of court.

Consistent with the spirit of the Uniform Act to create a cost-effective procedure for interstate depositions and discovery, this Act does not require that a party obtain local counsel or move for admission pro hac vice in order to request that a subpoena issue within North Carolina. However, although a request for the issuance of a subpoena under this Act does not constitute an appearance in the courts of this state, subsequent actions to enforce the subpoena or to resolve objections to the subpoena would require an appearance. These subsequent events implicate admission pro hac vice and the assistance of local counsel.

This Act dispenses with any requirement that the party requesting the North Carolina subpoena file a miscellaneous action or submit a petition to take discovery within North Carolina. It also eliminates any requirement that the party file in North Carolina a notice of deposition, request for production of documents, or similar discovery document. It is sufficient for a party to submit a letter or memorandum to the clerk of court requesting the issuance of the North Carolina subpoena along with: (1) the foreign subpoena and any attachments or exhibits; (2) a check made payable to the clerk of court in the amount of the appropriate civil filing fee; and (3) a self-addressed, postage-paid envelope for return of the documents.

Session Law 2011-247, which enacted this section, also amended Rule 28(d)(1) of the North Carolina Rules of Civil Procedure to make that rule inapplicable to depositions to be used in a state other than North Carolina. Session Law 2011-247 preserved Rule 28(d)(1)'s applicability to depositions to be used in foreign countries. Furthermore, Session Law 2011-247 did not change or repeal North Carolina laws or rules requiring a commission to take a deposition in a foreign jurisdiction or foreign country.

§ 1F-4. Service of subpoena.

A subpoena issued by a clerk of court in North Carolina under G.S. 1F-3 must be served in compliance with G.S. 1A-1, Rule 45(b) of the North Carolina Rules of Civil Procedure.

History

(2011-247, s. 1.)

§ 1F-5. Deposition; production; inspection.

Rules 26, 28, 30, 31, 34, and 45 of G.S. 1A-1, the North Carolina Rules of Civil Procedure, apply to subpoenas issued under G.S. 1F-3.

History

(2011-247, s. 1.)

OFFICIAL COMMENT

The Act requires that the discovery permitted by this section must comply with the laws of the discovery state. The discovery state has a significant interest in these cases in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request. Therefore, the committee believes that the discovery procedure must be the same as it would be if the case had originally been filed in the discovery state.

The committee believes that the fee, if any, for issuing a subpoena should be sufficient to cover only the actual transaction costs, or should be the same as the fee for local deposition subpoenas.

NORTH CAROLINA COMMENT

This Act preserves the current practice and law requiring the party requesting the North Carolina subpoena to pay to the clerk of court a filing fee.

§ 1F-6. Application to court.

An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under G.S. 1F-3 must comply with the rules or statutes of this State and be submitted to the court in the county in which discovery is to be conducted. Where a dispute exists between the parties to the action, the party opposing the discovery shall apply for appropriate relief to the court in which the action is pending and not to the court in the state in which the discovery is sought.

History

(2011-247, s. 1.)

OFFICIAL COMMENT

The act requires that any application to the court for a protective order, or to enforce, quash, or modify a subpoena, or for any other dispute relating to discovery under this Act, must comply with the law of the discovery state. Those laws include the discovery state's procedural, evidentiary, and conflict of laws rules. Again, the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests, and this is easily accomplished by requiring that any discovery motions must be decided under the laws of the discovery state. This protects the deponent by requiring that all applications to the court that directly affect the deponent must be made in the discovery state.

The term "modify" a subpoena means to alter the terms of a subpoena, such as the date, time, or location of a deposition.

Evidentiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in the discovery state under the laws of the discovery state (including its conflict of laws principles).

Nothing in this act limits any party from applying for appropriate relief in the trial state. Applications to the court that affect only the parties to the action can be made in the trial state. For example, any party can apply for an order in the trial state to bar the deposition of the out-of-state deponent on grounds of relevance, and that motion would be made and ruled on before the deposition subpoena is ever presented to the clerk of court in the discovery state.

If a party makes or responds to an application to enforce, quash, or modify a subpoena in the discovery state, the lawyer making or responding to the application must comply with the discovery state's rules governing lawyers appearing in its courts. This act does not change existing state rules governing out-of-state lawyers appearing in its courts. (See Model Rule 5.5 and state rules governing the unauthorized practice of law.)

NORTH CAROLINA COMMENT

The last sentence of this section is not found in the Uniform Act. It expressly mandates that portion of the Official Comments that suggests disputes between the parties to the action should be raised in the court in which the action is pending and not to the North Carolina court issuing the subpoena. This Act does not, however, incorporate the Uniform Law Commission's requirement that parties bring controversies before the trial court only when those disputes "affect only the parties to the action." Such a requirement invites gamesmanship between counsel since virtually every dispute over discovery would also "affect" the third party from whom discovery is sought.

The effect of the last sentence of this section is made clear by the following three examples:

Example 1: A dispute is pending in Tennessee. Plaintiff, by issuance of a North Carolina subpoena in accordance with G.S. 1F-3, notices the deposition of defendant's ex-wife, who resides in North Carolina. During the deposition held in North Carolina, plaintiff asks a question about information to which the joint spousal privilege applies. The attorneys for the ex-wife and defendant object on grounds of the spousal privilege. If plaintiff believes the privilege has been invoked inappropriately by the ex-wife, plaintiff must resort to the North Carolina court issuing the North Carolina subpoena, which would apply its laws on privilege and its conflicts of laws principles. However, to overcome defendant's objection on grounds of the spousal privilege or to have that information admitted at trial, plaintiff must resort to the trial court in Tennessee, which would apply its own laws, including its conflicts of laws principles.

Example 2: A dispute is pending in Tennessee. Plaintiff, by issuance of a North Carolina subpoena in accordance with G.S. 1F-3, notices the deposition of a third-party contractor for defendant, which contractor exists under the laws of North Carolina. During the deposition held in North Carolina, plaintiff asks a question about trade secrets and commercially sensitive information unique to the contractor. The attorney for the contractor objects and instructs the contractor not to answer the question without the entry of a protective order. The attorney for the defendant, who has no stake in the sensitive information, does not object. If plaintiff believes the objection is inappropriate, plaintiff must resort to the North Carolina court issuing the subpoena, which would apply its own laws, including its conflicts of laws principles.

Example 3: A dispute is pending in Tennessee. The trial court in Tennessee, upon the plaintiff's motion, enters an order allowing the plaintiff to seek very limited discovery outside the discovery period from a third party, who resides in North Carolina. Plaintiff has issued and served upon the third party a North Carolina subpoena in accordance with G.S. 1F-3 that seeks the production of particular documents. Defendant believes that the subpoena seeks information outside the limited scope of discovery allowed by the Tennessee court's order. The third party has no objection. As the dispute regarding the scope of the Tennessee court's order does not involve the third party or implicate a North Carolina interest, defendant must seek appropriate relief from the trial court in Tennessee.

§ 1F-7. Uniformity of application and construction.

In applying and construing this Chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that have enacted the Uniform Interstate Depositions and Discovery Act.

History

(2011-247, s. 1.)