How Can I Get Relevant Documents And Information From A Non-Party Witness Located In New Jersey?
Prosecuting or defending civil or commercial lawsuits that span multiple states is challenging. This article provides invaluable information on navigating business litigation that involves multiple states. This article is particularly helpful if you are an out-of-state litigant or lawyer seeking to get relevant materials or information from a non-party witness living in New Jersey. Specifically, this article addresses:
- The New Jersey Uniform Interstate Deposition and Discovery Act (the “NJ UIDDA”).
- The two methods of getting documents or information, in aid of a lawsuit in the courts of a sister state, from a non-party witness located in New Jersey.
- The three steps for obtaining documents or data, in aid of a lawsuit in federal court or in the courts of a foreign nation, from a non-party witness residing in New Jersey.
How Can I Get Documents Or Information, In Aid Of A Lawsuit In The Courts Of A Sister State, From A Non-Party Witness Residing In New Jersey?
On September 1, 2014, New Jersey adopted the New Jersey Uniform Interstate Deposition and Discovery Act (“NJ UIDDA”) to simplify the process for out-of-state lawyers to serve subpoenas in New Jersey and for New Jersey lawyers to serve out-of-state subpoenas.
In this article, a “sister state” means a state of the United States other than the State of New Jersey (e.g., New York, California, etc.). In this article, an “out-of-state subpoena” means a subpoena, issued under the laws of a state of the United States other than the State of New Jersey, in aid of a lawsuit in the courts of that sister state.
The NJ UIDDA provides two methods of seeking discovery in New Jersey in aid of an out-of-state lawsuit.
First, an out-of-state lawyer or litigant can file an out-of-state subpoena, along with a New Jersey subpoena, with the Clerk of the Court (the “Court Clerk”) and ask the Clerk to issue a subpoena.
Second, an out-of-state lawyer or litigant can send the out-of-state subpoena, along with a New Jersey subpoena, to a New Jersey attorney, who may issue the subpoena.
The subpoena may require the person or entity to whom it is directed both (i) to produce documents and (ii) to appear and give testimony at a deposition.
If the out-of-state attorney or litigant uses the Court Clerk to issue the subpoena, a filing fee must be paid, and the subpoena is filed with the Clerk in the county of New Jersey (e.g., Bergen County, Hudson County, Essex County, etc.) where the discovery is sought. Typically, the county of New Jersey where discovery is sought is the county of New Jersey where the witness resides or where the corporate entity subpoenaed is located.
However, if the out-of-state attorney or litigant uses a New Jersey lawyer, there is no need to file the subpoena with the Court Clerk. The out-of-state subpoena and the New Jersey subpoena are simply sent to the New Jersey lawyer, who issues the subpoena.
There is no need for a Court to enter an Order before the issuance of a subpoena. This is the case regardless of whether the Court Clerk issues the subpoena or a New Jersey lawyer issues the subpoena.
The first aforementioned means of seeking discovery in New Jersey in aid of an out-of-state lawsuit (that is, filing, with the Court Clerk, the out-of-state subpoena and a New Jersey subpoena) involves minimal judicial oversight. However, the second aforementioned means of seeking discovery in New Jersey in aid of an out-of-state lawsuit (that is, using a New Jersey lawyer to issue the subpoena) involves no judicial oversight. For this reason, litigants often prefer the second method.
The New Jersey subpoena must incorporate the terms and conditions used in the sister state subpoena, must inform the witness of his or her right to move or quash or modify the subpoena, must list the names and contact information of all attorneys of record, and must contain the caption and the case number of the lawsuit in the courts of the sister state.
Unlike some sister states and the federal courts, New Jersey mandates that any subpoena seeking documents must also seek to take the witness’s deposition. Further, the New Jersey subpoena must state that the sought-after documents may not be released before the deposition date. This requirement affords the witness time to file a motion to quash the subpoena.
How Can I Get Documents Or Information, In Aid Of A Lawsuit In Federal Court Or In The Courts Of A Foreign Nation, From A Non-Party Witness Located In New Jersey?
Unlike getting discovery from a New Jersey resident for use in a lawsuit in the courts of another state, obtaining discovery of a New Jersey resident for use in litigation in a federal district court (that is, in a federal trial court) or in the courts of a foreign country requires a Court Order.
That is, a litigant in a lawsuit in the federal district courts in the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or the territories of the United States, or a litigant in a lawsuit in the courts of a foreign nation, may request to use the power of New Jersey’s courts to aid that federal litigation or foreign litigation by requiring a witness located in New Jersey to answer interrogatories, appear for an oral deposition, or produce things or writings.
The New Jersey Court Rules provide a procedure to issue the necessary process through an ex parte application. An ex parte application is one in which the litigant making the applicant is not required to notify the other litigants.
The federal or foreign litigant must retain an attorney authorized to practice in New Jersey.
That New Jersey attorney may file, in New Jersey Superior Court, an ex parte petition requesting that the Superior Court issue the necessary process to comply with the federal court’s or foreign court’s decree regarding discovery in another jurisdiction. The New Jersey attorney must file the petition, a proposed form of Order, a proposed subpoena, and the appropriate filing fee with the Superior Court Clerk. The petition should be filed in the county of New Jersey where the witness resides or works. The New Jersey attorney must also include a Commission, Letters Rogatory or other similar judicial certificate issued in the forum jurisdiction.
In particular, there are three steps for obtaining a subpoena demanding documents or data, in aid of a lawsuit in federal court or in the courts of a foreign nation, from a non-party witness residing in New Jersey.
- Review and comply with the forum court’s requirements for pursuing discovery in another jurisdiction. Obtain a Commission or Letters Rogatory under the seal of the appropriate court clerk or public official authorized, in the forum jurisdiction, to issue such a document.
- Retain a lawyer authorized to practice in New Jersey to file, with the Superior Court of New Jersey, an ex parte petition seeking an Order authorizing the issuance of a subpoena directing the New Jersey resident to answer written interrogatories or to appear for a deposition. The New Jersey attorney must file with the Superior Court, Law Division – Civil Part, an ex parte petition, include a proposed form of Order, and a proposed subpoena, as well as a $50 fee payable to Treasurer, State of New Jersey. The New Jersey lawyer must also include the Commission, Letters Rogatory or other similar judicial certificate issued in the forum jurisdiction.
- Upon receipt of the signed Order and subpoena, have the New Jersey lawyer serve the subpoena or notice in lieu of subpoena. If the witness flouts the subpoena or refuses to appear for deposition, the New Jersey lawyer may defend the subpoena’s issuance or ask the Superior Court for appropriate sanctions, as applicable.
In summary, if you want to obtain documents or testimony from a witness in New Jersey in aid of a lawsuit a lawsuit in the courts of another state, you may either (i) file an out-of-state subpoena, along with a New Jersey subpoena, with the Court Clerk of the county in New Jersey in which discovery is sought, who will issue the subpoena, or (ii) send the out-of-state subpoena, along with a New Jersey subpoena, to a New Jersey attorney, who may issue the subpoena. Either way, no Court Order is required.
In contrast, if you need to obtain documents or testimony from a witness in New Jersey in aid of a lawsuit in federal court or in the courts of a foreign nation, you must submit an ex parte application to the Court and obtain an Order authorizing service, upon the witness, of the subpoena.
If your company wants to bring, or needs a lawyer to defend it in, business litigation and you are located in the New York City area, call New York City Business Litigation Attorney David S. Rich at (201) 884-2114.
