Proposal: Replace Letters Rogatory and Commissions with Interstate Federal Subpoena

A quick way to decrease the attractiveness of federal courts in diversity cases (i.e., to encourage diversity cases to be brought in state courts) would be to permit litigants in state courts to use the federal courts for service and (optional) enforcement of interstate subpoenaes.

Last Update: October 23, 1999

How Letters Rogatory and Commissions Work

One of the main reasons I, as a litigator, have chosen to file cases in the federal courts is the archaic way in which out-of-state subpoenaes in a state-court proceeding are to be issued and enforced. The requirements are so complicated, time-consuming and costly, that many lawyers, including myself, avoid the state courts in matters involving out-of-state witnesses and out-of-state documents.

The procedure we try to avoid is known as the "commission" or "letters rogatory" which is the process required in a state court action to be able to obtain the issuance and service of an out-of-state subpoena. In New York, see Rules 3108, 3113(a), 3111 and 328 of the New York Civil Practice Law and Rules (CPLR).

CPLR Rule 3113(a) is the New York rule permitting depositions to be obtained from outside of New York State CPLR Rule 3113(a) - Conduct of the Examination before Trial.

CPLR Rule 3111 is the New York rule permitting books, papers and other things (loosely referred to as documents) to be demanded for production at a deposition CPLR Rule 3111 - Production of Things at the Examination.

CPLR Rule 3108 is a seldom-used rule permitting depositions to be taken, both inside and outside New York State, on written questions (served on the parties and perhaps seen by the witness) days or weeks in advance of the deposition CPLR Rule 3108 - Written Questions - When Permitted.

Finally, CPLR Rule 328 is the New York rule permitting depositions in New York for lawsuits which are being litigated in a court not in New York State CPLR Rule 328 - Assistance to Tribunals and Litigants Outside the State.

For example, when I bring an action in New York with witnesses in New York and California, it is easy to serve and enforce a subpoena in New York (the forum state). I merely fill out the form of subpoena, give it to a process server, and wait for the process server's return of service (stating under oath that the subpoena was served on a particular person at a specified time, date and place).

Then, on the date noticed for the witness to testify and to produce documents, I merely show up (with my court reporter) and take the testimony of the witness as well as copies of the requested documents which he/she has produced.

However, in the case of one or more California witnesses, I have to do the following (and sometimes have to do the following more than one time in a single action) to obtain and enforce letters rogatory or a commission (to obtain issuance of the needed subpoenaes):

• 1. Prepare a proposed motion to be made in the New York court requesting the Court to enter an order appointing me or someone else (or even multiple persons) as a "commission" or recipient(s) of "letters rogatory" to go to the California Courts and under the doctrine of "comity" between the two state court systems issue a subpoena or subpoena duces tecum at the request of the commission or holder of the letters rogatory. Such motion would normally consist of

  (i) a notice of motion,

  (ii) one or more supporting affidavits or affirmations showing the need for the issuance of the requested California subpoenaes and the names of the persons in whose favor the commission or letters rogatory is to be issued by the New York court, including any supporting exhibits,

  (iii) a form of proposed commission or letters rogatory,

  (iv) a memorandum of law in support of the motion (prepare your own based on the relevant state law),

  (v) a form of court order for the judge in New York to sign,

  (vi) appropriate blue backs and covers, and

  (vii) an affidavit of service for such motion papers on the opposing lawyer in the New York action (a simple document not necessary to provide herein).

  The length of time to do this is often weeks, months or never, because of the requirements which follow. Let's assume that we decide to obtain the California subpoena on January 1st, and that in one week (i.e., by January 8th) I have figured out (through legal research and asking other lawyers) what to do and have discussed and obtained approval for the comparatively high costs of the procedures involved.

• 2. Consulting with the clerk of the appropriate court in New York to decide what the clerk's (or judge's) requirements are for such a motion, to avoid having to come back again. This can take about 4 hours' time, especially when it is felt necessary to take a trip to the New York court to obtain a copy of the (almost inadequate, irrelevant, obsolete) form which the court clerk (thankfully) makes available to you. I don't have the luxury of a managing clerk's office or paralegal staff to do my running around therefore I have to wait a week before I can take off several hours to go to court. This step (which is intertwined with the activities in step 1 above) takes me up to January 15th.

• 3. Preparing and sending a letter to the opponent, together with a copy of the foregoing motion papers, requesting that the opponent consent to the proposed motion and suggest any changes in the motion papers which he/she may wish in order to obtain the opponent's consent in advance to the motion. Obtaining this consent and any requested changes can take anywhere from one week, to several months, to never (which means that the party seeking the California subpoena is much better off making the motion without sending an advance copy of the motion papers to the opponent and making his/her apology to the opponent for "forgetting" to do so at a later time). Although the letter and copy of motion papers would be sent on January 9th, the opponent may well take one month to respond (i.e., to throw a deliberate delaying block into my efforts to hopefully prevent the California subpoena and deposition in its entirety). Thus, this step may well be completed on February 15th.

• 4. Updating the motion papers with new dates and any corrections or changes (considered appropriate by myself and/or my opponent) and serving a copy of such papers on my opponent by hand (to cut down the waiting period by 5 days which occurs when motion papers are mailed instead of hand-delivered). This step could be completed one week later (due to other things I have to do with higher priority), or by February 22nd. See NY CPLR Rule 2103(b)(2) for the 5-day rule.

• 5. The motion itself has to be noticed in the New York Courts to be heard by the Court at least 5 business days after the date of service upon the opponent (or 10 actual days if the motion is served by mail). Also, the specific judge assigned to the case (if any) may have motion requirements which require the motion to be made (even without mailing) about 10 days after the date the motion is ready to be served. Also, the opponent and even myself may not be able to go to court on the earliest date available under the rules of the Court and any specific judge assigned to the case. With all these problems of motion timing, I assume that the motion will actually be heard, after one adjournment (sought for no good reason by the opposing party) in one month after the date of service on the opponent, or on March 22nd, or if this is the first time for any judicial involvement in the case, and other papers have to be prepared, served and filed seeking judicial intervention, and the judge has to be appointed, with all of the necessary delays to accomplish this, and for the motion papers to actually reach the newly-assigned judge, the motion will probably be heard on April 22nd, which is the date I will use hereinafter.

• 6. After the lawyers for the parties have appeared in Court to argue the motion for the issuance of a commission or "letters rogatory", the Court takes whatever time it wishes to take in deciding the motion (even if the motion is consented to by the opposing party). Thus, the judge might take 30 to 60 days to actually read the motion papers (because he has hundreds of others to decide before he gets to this motion), which means that we get our (hopefully favorable) decision on the motion on June 22nd.

• 7. After the parties obtain a copy of the decision, I have to prepare, serve and file a notice of entry of order (to start the time running for any interim appeal by the opponent as to the assumed grant of the order by the court) and prepare and obtain a certified copy of the Court's order, for use in the California courts. I assume this will take me another week, or by June 29th.

• 8. After the order is prepared, I have to hire and (either I or the client has to) pay for an attorney in California to represent my client and me (as holder of the commission or letters rogatory) to assist me in obtain the appropriate order(s) from the California court. This will take about 2-3 weeks, often because of the insistence of the California law firm in having a fee agreement signed by me as well as my several clients, which is time-consuming, including the need by California counsel for an original copy of the fee agreement signed by all of my clients. Thus, the date at which we have local counsel is by July 20th.

• 9. Meanwhile, I haven't been wasting time. I have been looking up California law and have been preparing a set of motion papers (to be reviewed and approved by California counsel) which would request the California court to order issuance and service of the subpoenaes upon one or more California witnesses. This paperwork will be done as much as I can do without aid of California counsel by July 20th.

• 10. Now, my California counsel take my papers, do any legal research they need to do, and make suggested changes in my proposed motion papers, and finally, within two weeks or so have the motion papers drafted and presented to me for review. This is done by August 3rd, I assume.

• 11. I review these papers, and suggest any changes, and obtain whatever signatures on affidavits which are needed for the California courts, and get these papers (in their original form) back to the California counsel, in 2 weeks, or by August 17th.

• 12. The California counsel then puts together the final copy of the motion papers (including notice of motion, one or more supporting affidavits, affidavit of service and memorandum of law) and serves and files them in one week, or by August 24th.

• 13. The return date for the motion is August 31st, I assume.

• 14. There will probably be no opposition to the motion or application, and the California court will grant it without opposition within one week (or is this wishful thinking?), or by September 7th, and the California counsel will have all of his documents from the Court by September 14th (wishful thinking again?).

• 15. I will be advised on September 14th that we can proceed with issuance of the subpoena on the California witness(es), and either I or the California counsel will prepare a California subpoena, give it to a local process server in California for service, and wait for the return of service. This should take place in 2 weeks, or by September 28th.

• 16. The noticed deposition (or at least the 1st noticed deposition) will have been scheduled for October 10th or so, but the witness and/or his lawyer will not be able to make this date, or the next date, and the deposition, if we're lucky, will take place on November 10th, almost 10-1/2 months from the day I decided to take the California deposition.
• 17. Another time-consumer is the provision in the Clerk's form of order which requires that documents produced pursuant to a subpoena duces tecum outside the State of New York be produced to the Clerk of the Court in New York, who then presumably forwards such documents to the party seeking the out-of-state discovery. I shudder to think how long this might take, but let's say that we can expect to get the documents by December 31st, exactly one year after we decided to take the deposition.

Further Discussion of Proposal and Benefits

Any further depositions needed in California (and not included as part of the original motion) or any depositions of witnesses in other states would take additional time, costs and delay.

This procedure is so cumbersome and costly that attorneys like myself file in federal court to avoid such procedure. Yet, if a federal statute or even court rule were passed enabling multi-state subpoenaes to be handled out of federal court in the same way that subpoenaes are issued and served in federal civil litigation, the procedure would take virtually no time at all, and would be like this:

• 1. On January 1st I decide to issue a subpoena to compel testimony and document production by a California witness.

• 2. I fill out the identical federal subpoena form (except giving the California federal court as the issuing court) and send it to a process server in California for service, which is received by it (by Federal Express) on January 2nd.

• 3. The process is served on January 3rd or 4th, compelling the witness to show up for a deposition on January 14th.

• 4. After two adjournments for convenience of the witness, his counsel and even myself (and/or my opposing counsel), the deposition is held 2 weeks later, on January 28th.

All that needs to be done is to permit multi-state subpoenaes to be issued out of and enforced in federal court, and the federal court system will lose tens of thousands of cases. The additional burden on the federal courts is minimal because the subpoenaes are not even filed in federal court, and most subpoenaes do not require court intervention.

Finally, any legislation or rule should probably permit the witness or opposing party to resist the subpoena in either the out-of-state federal court, or the state court in which the action was originally brought (which issued the commission or letters rogatory). The anticipated activities (i.e., burden) on the federal courts would be far less because of the natural alliance and cooperation between the witness and opposing party (meaning the party not seeking the subpoena) who could work together to resist enforcement in the state (herein, New York) court.

Carl E. Person

Copyright © 1995, 1999 by Carl E. Person