Crossing State Lines for Evidence: Navigating Interstate Discovery in Civil Cases

Obtaining evidence from another state can be a daunting task for anyone involved in a lawsuit. In civil litigation, the discovery phase is the formal process where both sides gather and exchange information (documents, testimony, etc.) relevant to the case. But what happens when that crucial information – like bank records or a witness’s testimony – is located outside the state where your case is filed? This is where “interstate discovery” comes into play. In this article, we’ll demystify the process of obtaining documents and depositions across state lines, explain the Uniform Interstate Depositions and Discovery Act (UIDDA) and its adoption by states, and offer tips for tackling the logistical challenges of interstate discovery in civil cases.

What Is Interstate Discovery and Why Is It Challenging?

Imagine you’re litigating a case in North Dakota, but you need bank statements from an Oklahoma bank or want to depose a witness (say, the opposing party’s grandfather) who lives in Florida. Your local court in North Dakota (or Minnesota, or any state where your lawsuit is pending) only has jurisdiction within its own state lines. A subpoena issued by a state court has no automatic power once it crosses the border into another state. In other words, a North Dakota subpoena can’t directly compel that Oklahoma bank or Florida resident to comply, because state court subpoena authority does not cross state lines.

Each state is considered a separate “sovereign” for these purposes, so to make an out-of-state person or company produce evidence, you must follow a legal process that involves the courts of the state where that evidence or witness is located. Historically, this could be a complex and inconsistent procedure. Before modern reforms, an attorney often had to:

• Get permission from the home state court: e.g. a special order (sometimes called a commission or letters rogatory) from the court where the lawsuit is filed, authorizing the out-of-state discovery.
• Approach the foreign state court: Use that permission to ask the other state’s court (the state where the witness or documents are) to issue its own subpoena or order compelling the discovery.

This two-step dance meant double the paperwork and navigating two different court systems’ rules. Every state had its own quirks – some required filing a formal motion, others needed you to show the evidence was essential and not obtainable otherwise. In short, interstate discovery used to be a cumbersome, time-consuming process.

The Uniform Interstate Depositions and Discovery Act (UIDDA): A Game Changer

To streamline and standardize the out-of-state subpoena process, the Uniform Law Commission in 2007 proposed the Uniform Interstate Depositions and Discovery Act, commonly called UIDDA. The UIDDA creates a uniform procedure for taking depositions and obtaining documents across state lines in civil cases, making it much easier when both the home state and the foreign state have adopted this law.

Under the UIDDA (which states implement either as a statute or court rule), the process is significantly simplified. As of the mid-2020s, nearly every U.S. state has adopted UIDDA in some form. In fact, 47 states, the District of Columbia, and the U.S. Virgin Islands have enacted UIDDA, including North Dakota and Minnesota. (North Dakota incorporated it as Rule 5.1 of its court rules in 2013, and Minnesota adopted it in 2015 as part of Rule 45.) This widespread adoption reflects a broad consensus on the need for a standardized approach to interstate subpoenas. Only a couple of states (Massachusetts, Missouri and New Hampshire, as of the date this blog was written) have not yet implemented UIDDA. Even in those states, legislation is currently pending to enact the UIDDA.

So what does the UIDDA do? In plain terms, it says that if you have a valid subpoena from your home state, you can take that to the state where your witness or evidence is and get a local subpoena issued without having to start a whole new court case there or get a judge’s permission in that state. The UIDDA process closely mirrors the way federal courts handle interstate subpoenas under Federal Rule of Civil Procedure 45, making the procedure more familiar and “user-friendly” for attorneys.

How to Obtain an Out-of-State Deposition or Documents (UIDDA Procedure)

When both the state where your case is pending and the state where the discovery is sought have adopted UIDDA, getting an out-of-state subpoena is relatively straightforward. Here’s an overview of how the process typically works under UIDDA:

1. Start with a home-state subpoena – First, ensure you have a subpoena from your home state court (the court where your lawsuit is). This subpoena should list exactly what you’re seeking – e.g., the deposition of John Doe in Florida on a certain date, or production of bank records from XYZ Bank in Oklahoma.
2. Obtain a blank subpoena form from the foreign state – Next, get a subpoena form for the state where the witness or documents are located. Every state’s court system has their own subpoena format. For example, if your witness is in Florida, you’d use a Florida subpoena form (often downloadable from that state’s court website or obtainable from the local clerk). You typically will use the same case caption (your case’s name and number) on the foreign subpoena, although this is not always the case.
3. Prepare a foreign-state subpoena mirroring your home subpoena – Fill out the foreign state’s subpoena with all the same details and requests as your home-state subpoena. UIDDA essentially requires that the new subpoena “incorporate the terms” of the original subpoena. Include names of the parties/counsel and exactly what testimony or documents are demanded, as you would for any subpoena. (One advantage: Requesting the foreign subpoena is not considered making a legal appearance in that state’s courts, so you do not need to be licensed in that state or file a separate lawsuit there just to get the subpoena.)
4. Submit the documents to the relevant court clerk in the other state – Take (or send) your completed foreign-state subpoena plus a copy of your original home-state subpoena to the clerk of court in the county where the discovery will occur. For instance, if deposing a witness in Orange County, Florida, you’d go to the clerk of the court in that county. Under UIDDA, the clerk will “promptly issue a subpoena for service” upon the person or entity directed, effectively domesticating your subpoena into a local subpoena. This usually does not require any motion or judicial approval – it’s an administrative task for the clerk. (In some states, an attorney licensed in the discovery state can even issue the subpoena without clerk involvement, but generally clerk issuance is the norm.)
5. Serve the new subpoena according to the local rules – Once you have the foreign-state subpoena issued, you must serve it just like you would any subpoena in that state. This means following that state’s rules on service of process (for example, who can serve it, how it must be delivered, and any witness fee requirements). It’s common to hire a local process server in the witness’s state to ensure proper service. The subpoena will compel the person to either produce the documents (often by a certain date or at a deposition) or attend the deposition in that state (or remotely, as arranged), under that state’s rules.
6. Handling any disputes or compliance issues – The laws of the state where the discovery is taking place govern issues like protective orders, motions to quash the subpoena, or enforcement if the witness doesn’t comply. In practice, this means if your out-of-state witness refuses to obey the subpoena, you would need to seek relief from a court in that witness’s state, not your home court. (The UIDDA makes it clear that any motion related to the subpoena – to enforce or quash – is made in the discovery state’s court.) The good news is that because the subpoena is now an in-state subpoena for them, the local court has full authority to enforce it just as if the case were pending there.

This UIDDA process greatly reduces the hassle. No longer must you routinely get a judge’s order in your state and hire local counsel in the other state just to start the discovery – in many cases, you simply exchange paperwork via the clerk’s offices. It’s worth noting that UIDDA covers subpoenas for depositions, document production, and inspections (i.e., pretrial discovery), but it does not apply to a subpoena to compel someone to attend a trial in another state. Trial subpoenas across state lines are a different matter (often nearly impossible in civil cases without voluntary cooperation or other acts), so here we’re focusing on discovery only.

Conclusion

In summary, interstate discovery has become much more streamlined thanks to the Uniform Interstate Depositions and Discovery Act. If both your state and the target state have enacted UIDDA (as most have), the process is largely administrative: you present a “foreign” subpoena to a local clerk, who issues an in-state subpoena that carries legal force across state lines. This eliminates much of the old red tape, like seeking separate court orders in each jurisdiction, and it avoids requiring attorneys to be licensed in multiple states just to handle routine discovery.

However, interstate discovery still requires careful attention to detail. It’s important to follow the letter of the law in the state where your evidence or witness is located. By understanding the UIDDA process (and knowing when it applies), you can save time and resources in gathering out-of-state evidence.

Finally, don’t be afraid to seek professional assistance. Interstate subpoenas can raise tricky issues, and an experienced attorney can help navigate differing state rules or handle objections. If you need help obtaining discovery for a case in North Dakota or Minnesota, contact any of the civil practice groups at SW&L by calling 701-297-2890 or emailing us at: [email protected].

The information contained in this article and on this website is for informational purposes only. Do not rely on information on this website as legal advice. Please refer to the full disclaimer here.