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Pennsylvania Family Law Updates, Events & Useful Tips Surrounding Family Law Issues

INTERSTATE DISCOVERY JUST GOT EASIER (MAYBE)

Posted in Practice Issues

 We live in an age when both people and transactions cross state borders more and more often. Evidence concerning what occurred in Pennsylvania is often located outside of the four corners of the Commonwealth and thus, beyond the subpoena power of Pennsylvania Courts.  This is true for all forms of litigation, not just family law.

 

In the past, if you needed to secure documents or depose a witness outside our borders, you had to secure something called a foreign commission.  Essentially, one filed a motion in the Pennsylvania case to be permitted to conduct discovery outside of the Commonwealth.  Your opposing parties could contest the motion here, typically on the basis that the evidence was not relevant or a mere fishing expedition.  If your relief was granted, you next hired counsel in the jurisdiction where the evidence or witness was located.  That attorney would file a miscellaneous action in the foreign court (“foreign” meaning outside Pennsylvania) specifying the needed discovery, indicating that Pennsylvania had approved pursuit of it and asking for leave to proceed in the other state.  This action would be served on the witness or records custodian outside Pennsylvania.  That person or entity had its own right to ask that the relief be denied. Again, most often that would be because they denied relevance.

 

Effective December 24, 2012 Pennsylvania adopted the Uniform Interstate Depositions and Discovery Act (Act No. 183 of 212: SB 79 of the 2011 Session).  This act has been adopted by 28 states (including (DE, MD, NY, VA).  The purpose is to streamline the old cumbersome procedure by making it a one-step process.  If you the litigant in Pennsylvania need evidence in New York, you will need to follow the New York statute and engage counsel in New York to actually take the discovery.  But the “permission” part of the old foreign commission rules has been abandoned as far as the Commonwealth is concerned.  Similarly, if a New York litigant wants to take discovery here the New York litigant issues a New York subpoena to the Prothonotary in the county where the witness or evidence is located.  The Prothonotary is to “promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.” 42 Pa. C.S. 5335(b). The Pennsylvania subpoena is to conform to the foreign subpoena in content and have the identity of all parties and/or counsel, if represented. The statute expressly adopts Pa. R.C.P. 4009.21-.27.

 

Pennsylvania parties served with such a subpoena must file for a Protective Order under Rule 4012 if they wish to oppose the request discovery.  Otherwise, the re-issued foreign subpoena (now in its Pennsylvania form) is subject to the same powers as any other Pennsylvania subpoena including the right to enforce through contempt. 42 Pa. C.S. 5337.

 

The statute makes clear that parties in Pennsylvania may informally comply.  The remedy is limited to subpeonae issued by any of the United States, Puerto Rico, the US Virgin Islands and the District of Columbia.