North Carolina adopted the Uniform Interstate Depositions and Discovery Act (UIDDA) in 2007. North Carolina is one of the 42 states that have adopted the UIDDA for the sole purpose of making discovery by duces tecum and depositions easier and requiring less interaction with the court system in having to acquire commissions. The North Carolina Statute on the UIDDA is Chapter 1F, accessible at https://www.ncleg.net/EnactedLegislation/Statutes/PDF/ByChapter/Chapter_1F.pdf .
Many of the states that have adopted the UIDDA use slightly different language requiring the North Carolina attorney to review the specific language and requirements of the foreign state’s jurisdictional rules prior to submitting a NC subpoena to the participating state. The process for issuing a subpoena to a foreign state, taken from http://www.ncids.com/forensic/motions/UIDDA_Guide.pdf , is as follows:
1. Determine if the state where the record is located has adopted the UIDDA.
2. If so, prepare a North Carolina Subpoena using the AOC-G-100 form. State on the NC subpoena that it is not enforceable but is being provided for the purpose of obtaining a UIDDA subpoena. A request for the issuance of a subpoena under the UIDDA does not constitute an appearance in the courts of the state in which the record is maintained.
3. Send the NC subpoena, a draft subpoena which complies with the foreign state’s rules of discovery, and a letter to the clerk of court where the record is maintained requesting that they issue a subpoena based on the included NC subpoena. The NC subpoena should clearly state that the NC subpoena was issued solely for the purpose of obtaining a UIDDA subpoena. The NC draft of the foreign subpoena should contain the names, addresses, and phone numbers of all counsel of record and any party not represented by counsel. Some states also have an application to submit along with those documents and can often be located on the web site of the particular foreign jurisdiction. The clerk’s office will usually have a web page explaining the forms and procedures that should be consulted in preparing the draft of the subpoena you are requesting be issued in the foreign jurisdiction.
4. Remember that any motion directly affecting the subpoena (to quash, enforce, modify) is governed by the rules of the state where the subpoena will be issued. Additionally, there is a presumption that the rules of discovery of the state where the subpoena is to be issued apply, though some states reverse this presumption.
5. Receive the requested documents.
The Uniform Law Commission stresses that it is important to understand that the subpoena submitted to the out-of-state clerk’s office complies with that state or local rules.
The 2014 North Carolina State Bar formal ethics opinion #7 (https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2014-formal-ethics-opinion-7/) states that “under Rule 8.4(c) it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Rules of Professional Conduct 235 and the 2010 Formal Ethics Opinion 2 “prohibit a lawyer from making misrepresentations to the subpoena recipient that the lawyer has the legal authority to issue the subpoena under Rule 45 or misleading the recipient as to whether compliance with the subpoena is required by law.”
In the formal ethics opinion, the attorney sent the subpoena directly to the foreign entity/individual with an enclosed letter explaining that the subpoena was not enforceable under NC R. Civ. P. 45 and the attorney’s actions did not constitute fraud under the ethics opinion. Had the attorney sent the subpoena and represented that the request was enforceable under NC R. Civ P. 45, then the attorney would have been in violation of Rule 8.4(c) of the Rules of Professional Conduct for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
However, under the UIDDA, the attorney would obtain an enforceable subpoena by sending a NC subpoena to the clerk of court in the county of the foreign state that clearly states “this NC subpoena is issued solely for the purpose of obtaining a UIDDA subpoena.” The clerk in the foreign state, assuming the attorney has followed all foreign local rules, would issue a subpoena incorporating all the language of the NC subpoena. When the attorney follows the UIDDA procedure, a court file is created in the foreign state and the foreign state clerk issues an enforceable subpoena that does not require a commission from the court in NC for duces tecum.