Serving Subpoenas Across State Lines: The Connecticut Interstate Depositions and Discovery Act
By: Kaelyn Mostafa
Before July 2023, out-of-state litigants had to follow a tedious process to obtain discovery from nonparties based in Connecticut. The litigant’s attorney was first required to apply to the court in which the civil suit was pending for a “commission” to serve a foreign subpoena on the Connecticut nonparty. Then, that attorney would need to hire Connecticut local counsel to bring an action in Connecticut court to domesticate the foreign subpoena. If local counsel successfully demonstrated to the court that the evidence sought by the foreign subpoena was material to the out-of-state action, the Connecticut court would then reissue the foreign subpoena for service on the Connecticut nonparty.
Effective July 1, 2023, the Connecticut Interstate Depositions and Discovery Act (CIDDA) – an adaptation of the Uniform Interstate Depositions and Discovery Act enacted by many other states – simplifies the process for out-of-state litigants to obtain discovery from nonparties located in Connecticut without the need for a commission or a showing that the discovery sought is material to the out-of-state action. The CIDDA applies to civil and probate court actions, which are pending at the time a foreign subpoena is sought.
To bring a successful application for issuance of a foreign subpoena (the “Application”) in Connecticut, out-of-state litigants should follow these three steps:
1. Prepare the out-of-state subpoena.
Applicants must first prepare a subpoena directed to the Connecticut nonparty in the form and under the proper authority prescribed by the state in which their action is pending. The subpoena may seek to compel the Connecticut nonparty to appear at a deposition, produce documents, or permit the inspection of property under such nonparty’s control.
When preparing the foreign subpoena, applicants should ensure that the location at which the nonparty is compelled to appear is within the state of Connecticut. In order to allow adequate time for service and processing by the Connecticut court, the date(s) for compliance should be at least two weeks after the date on which they intend to file the foreign subpoena in Connecticut court.
Under Connecticut law, a subpoena must be served on the recipient at least 18 hours prior to the time of compliance. If there is not sufficient time to serve the subpoena when the Connecticut court adjudicates the Application, it may be rejected.
2. File the required documents and pay the required fee.
To obtain a Connecticut-issued subpoena, one must initiate an action with the Connecticut court in the judicial district where the subpoena recipient is located by filing three documents: an Appearance (Form JD-CL-12); an Application for Issuance of Foreign Subpoena (Form JD-CL-166); and a Proposed Foreign Subpoena (Form JD-CL-167). These documents must be completed and filed correctly, and must be filed under the proper headings and case classification, or else the Application may be rejected or may not be adjudicated in a timely manner.
When initiating the Connecticut action, the parties should not be the same as the parties to the out-of-state action. Rather, the subpoena applicant must be entered as the “plaintiff” and the subpoena recipient must be entered as the “defendant.”
Applicants should not use the docket number for the out-of-state action on the required forms. Any fields, which ask for a docket number should be left blank – no docket number will be generated until after the forms are filed with the Connecticut court.
It is also important that the applicant, and not its counsel, execute the Application for Issuance of Foreign Subpoena (Form JD-CL-166). Although the applicant’s counsel may sign the other forms, the Application may be rejected if the Form JD-CL-166 is not signed by the applicant itself.
Once all documents are uploaded for filing, the applicant will be prompted to pay the requisite filing fee in the amount of $100.
3. Serve the foreign subpoena issued by the Connected court.
Once the Connecticut court accepts the Application and issues the requested foreign subpoena, the applicant should arrange for a Connecticut marshal to serve the subpoena, either in-hand or by leaving the subpoena at the recipient’s usual place of abode. Applicants should ensure that their selected marshal is authorized to serve process in the county where the recipient is located.
The process prescribed by the CIDDA is still new and can be challenging to navigate. Applicants or their attorneys should consider retaining local Connecticut counsel to ensure that the process is completed correctly to avoid any delays or obstacles to obtaining a foreign subpoena in Connecticut.
If you are an out-of-state litigant or attorney seeking discovery from a Connecticut nonparty, please contact one of Cohen and Wolf’s experienced civil litigation attorneys. We would be happy to assist you.