SEQ CHAPTER \h
\r 1PRACTICE POINTER
By Thomas J. Curcio, Esq.
Dunn, Curcio, Keating & Bracken, P.C.
Taking Depositions
In a Foreign Jurisdiction
State and federal statutes
exist which enable a lawyer to depose a witness in a foreign
jurisdiction. See Virginia Code §8:01-411 et seq. (1950,
as amended) (Uniform Foreign Depositions Act), and Rule 45
of the Federal Rules of Civil Procedure.
Under the state act, the
most efficient way to accomplish the taking of the deposition
in a foreign jurisdiction is to contact a trial practioner
in that jurisdiction (the ATLA Directory is a good source)
and to obtain the name of a court clerk in the jurisdiction
knowledgeable with the procedure. Speak with that clerk and
determine what is needed from the Virginia court in order
to issue a subpoena from the foreign court to the witness
to attend in that foreign jurisdiction. In the author’s
experience, what is required from the Virginia courts varies.
Some foreign courts require a notice of deposition under seal
by a Virginia court. Another foreign court required the entry
of an Order (called a “Commission”) by a Virginia
judge. Obtain whatever it is the Clerk tells you and send
it to the clerk in the foreign jurisdiction. It is helpful
to stay in touch with the lawyer in that foreign jurisdiction
to assist with having the subpoena served, arranging for an
office for the deposition and a court reporter. Give yourself
as much lead time as possible in arranging the deposition
so as to have sufficient time to accomplish what needs to
be done.
In federal practice, Rule
45 of the Civil Rules has simplified the process. Rule 45(a)(D)(2)
requires that a subpoena issue from the court for the district
in which the deposition is to take place. Rule 45(a)(D)(3)
enables the attorney of record where the action is pending
to sign the subpoena, as “an officer of the Court”
for the court in which the deposition is to be taken provided
the attorney is “authorized to practice” in the
court where the action is pending. Thus, in cases in which
the Virginia lawyer is acting as local counsel for out-of-state
attorneys handling the case in Virginia, it is the author’s
belief that the subpoena must be signed by the Virginia lawyer.
Once prepared, have the subpoena served upon the witness in
the foreign jurisdiction, along with the necessary witness
fees and mileage reimbursement.
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