By Sean Scribner –
As anyone who has attempted to obtain discovery from an out-of-state (foreign) individual or entity can attest, navigating the process can be a daunting, cumbersome endeavor. However, if the state from where the discovery is being sought has adopted the Uniform Interstate Depositions and Discovery Act (the “UIDDA”) the process will be considerably easier and much less costly.
Texas is currently not one of those states. However, as will be discussed, despite many years of holding out, the recent Texas legislative session has set forth a path to finally bring Texas in line with the rest of the country.
The UIDDA Streamlines and Simplifies Out-Of-State Discovery
First promulgated in 2007, the UIDDA was designed to streamline and simplify the procedures for litigants in one state to obtain discovery from individuals and entities located in other states. Prior to the UIDDA, each state maintained its own set of procedures, which resulted in an unwieldy, frustrating and costly process where significant research into the intricacies of a particular state’s legal framework was necessary. Often, local counsel was needed to pursue the obtaining of orders, commissions or letters rogatory from the court having jurisdiction over the locality. The costly inefficiencies inherent with such a system combined with the ever-increasing need for out-of-state discovery led to the Uniform Law Commission’s promulgation of the UIDDA.
The significance of the UIDDA cannot be overstated. In a UIDDA state, one no longer needs to obtain a commission, order or letter rogatory from a court before discovery can be sought. Under the UIDDA, the process for obtaining issuance of a subpoena simply consists of coordinating with the local court clerk’s office to ensure that local procedural formalities are satisfied. The UIDDA ensures that the various localities’ requirements are substantially similar. Then, the court clerk will issue the subpoena to be served.
Importantly, regardless of the adoption of the UIDDA, any action relating to a foreign subpoena, including efforts to enforce, modify, quash or obtain protection, can only be accomplished by procuring local counsel to engage in further efforts if one lacks a law license in the particular state.
Texas – the Biggest Holdout, But Maybe Not For Long
Since 2007, the UIDDA has been adopted and implemented in 47 states, with the only holdouts being Massachusetts, Missouri and Texas. Due to its economic power, being host to more Fortune 500 corporate headquarters than any other state (according to Fortune’s 2022 list), and its massive population, Texas has always been the most glaring omission from the list of UIDDA states.
However, at long last, Texas is on pace to end its holdout by way of the 88th Legislature’s passing of HB 3929, signed into law by Governor Abbott on June 11, 2023. HB 3929 (the “Act”) takes effect September 1, 2023.
It is important to highlight that the passage of the Act does not yet mean that the UIDDA has been adopted. Rather, the passage of the Act only provides that the “Supreme Court of Texas may adopt the Uniform Interstate Depositions and Discovery Act as rules of civil procedure.” The Act allows the Supreme Court of Texas to amend the Texas Rules of Civil Procedure to implement the UIDDA before September 1, 2025.
Before the UIDDA’s formal adoption, the procedure for out-of-state litigants to obtain discovery in Texas will continue to be governed by Texas Rule of Civil Procedure 201.2, which mandates that an out-of-state litigant seeking discovery from a Texas party must obtain a “mandate, writ, or commission” from the court where the lawsuit is pending.
With passage of HB 3929, the Texas Legislature has sent a clear message to the Texas Supreme Court that the adoption of the UIDDA is an important and desired step to bring Texas in line with the rest of the country. As the Act provides a time frame of September 1, 2023 to September 1, 2025 for the Texas Supreme Court to make the rule changes (adopting the UIDDA), interested observers will have to keep watch for the official pronouncement of these expected rule changes.
For further information on the Act, you can contact Sean Scribner at (469) 916-7700 x117 or email him.
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About Sean K. Scribner
Sean Scribner focuses his practice primarily in the area of commercial litigation. Sean has experience representing clients in a diverse array of litigation matters, including all manner of commercial disputes involving small to large businesses, partnerships, securities, insurance, and employment-related issues.
Sean has prosecuted and defended cases involving claims for breach of contract, fraud, anti-trust, DTPA violations, non-subscribing employer defense, mechanic’s liens, and construction defects.
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