While numerous states have adopted the Uniform Interstate Depositions and Discovery Act (UIDDA or “Uniform Act”), many have put their own twist on the Uniform Act; which also remains subject to each state’s underlying laws regarding service, and discovery. North Carolina is one of those states that have nuances that differ from the Uniform Act. Through my experience and research, I have compiled the necessary information you will need to navigate UIDDA in North Carolina. 

THE FACTS

North Carolina’s version of the UIDDA became effective December 1, 2011, and applies to all cases that were pending at the time or were filed on or after that date.

The North Carolina Uniform Interstate Depositions and Discovery Act (“the Act”) is found in Chapter 1F of the North Carolina General Statutes.

As per the Uniform Act, N.C.G.S. § 1F-3 provides that a party to a foreign action may submit a foreign subpoena to the clerk in the county in which discovery is to be conducted in North Carolina. The Act expressly provides that such a request does not constitute an appearance in North Carolina’s courts.

THE FORMS

Unlike many other states that have adopted the Uniform Act, North Carolina does not have a standard form that must be submitted or a special type of subpoena that must be used. Rather, the out-of-state attorney may simply state the request for issue of a North Carolina subpoena in a letter accompanying the foreign subpoena–along with a check for payment of the fee, and a proposed North Carolina subpoena to be issued by the clerk.

The fillable North Carolina subpoena is AOC-G-100 and may be found on the North Carolina Courts’ website: https://www.nccourts.gov/documents/forms.

As per the Uniform Act, N.C.G.S. § 1F-3(c) provides that a subpoena issued under the Act must: (1) incorporate the terms of the foreign subpoena; and (2) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record or unrepresented parties in the proceeding.

THE FINE PRINT

North Carolina’s Rules of Professional Conduct (which follow the Model Rules) indicate it is unprofessional for an attorney to represent that he has authority to compel discovery from an out-of-state party. Therefore, when preparing a North Carolina subpoena to be incorporated by the clerk of another state in a subpoena issued under that state’s version of the UIDDA, it is advisable to make clear on the face of the North Carolina subpoena that it is being issued pursuant to that state’s version of the Uniform Act, and solely for the purpose of being incorporated therein. I would suggest any out-of-state attorney submitting an out-of-state subpoena for issue in North Carolina take the same precautionary measure.

 

THE COST

The fee to be charged for issue of a foreign subpoena is set forth in Section 1F-3(b). This sub-section refers to the statute that sets the costs to be assessed in civil actions. While the sub-section referenced in Section 1F-3(b) contains different fees for actions filed in district court versus superior court, my experience has shown that foreign subpoenas will be treated as actions in superior court and therefore a fee of $200 assessed.

THE LOCATION

OF PRODUCTION

It is important to be sure the subpoena is requested from the appropriate county clerk. Pursuant to Rule 30(b)(1) of the North Carolina Rules of Civil Procedure, a resident of the state may only be compelled to attend a deposition in the county where he resides or is employed “or transacts his business in person.” Therefore, while it may be tempting to set a deposition close to the airport or at the office of a court-reporting agency with video-deposition capabilities, you need to first ensure the deposition will take place at a location where the deponent can be compelled to attend based on his residence or employment.

This will also determine the county clerk from which your subpoena should issue. It is unlikely a judge sitting in Mecklenburg County would compel the attendance at a deposition of someone who lives and works in a neighboring county.

SERVING THE SUBPOENA

Pursuant to N.C.G.S. § 1F-3(b), when a party submits the foreign subpoena to the clerk, the clerk is to open a court file, assign a file number, collect the fee, and issue the North Carolina subpoena for service.

The rules for service of a subpoena are found at Rule 45(b) of the North Carolina Rules of Civil Procedure. North Carolina’s Rules of Civil Procedure are modeled after the Federal Rules, and therefore will be reasonably familiar to most practitioners. The North Carolina Rule allows for service by the sheriff or “any person who is not a party and is not less than 18 years of age.” The Rule expressly provides service may be accomplished by personal delivery or by registered or certified mail, return receipt requested.  

NAVIGATING THE RULES OF DISCOVERY: OUR STATE OR YOURS?

Section 1F-5 of the Act provides that subpoenas issued pursuant to the Act are subject to North Carolina’s Rules of Civil Procedure that relate to discovery and the issuance of subpoenas. These are Rules 26 (General Provisions Governing Discovery), 28 (Persons Before Whom Depositions May Be Taken), 30 (Depositions Upon Oral Examination), 31 (Depositions Upon Written Questions), 34 (Production of Documents, Electronically Stored Information, and Things; Entry upon Land for Inspection and Other Purposes), and 45 (Subpoena). Again, these are largely modeled after the Federal Rules and will be fairly common to most practitioners.

Despite the language of Section 1F-5, Section 1F-6 and the North Carolina Comment thereto, suggest that North Carolina’s Rules of Civil Procedure may only apply to the extent a dispute arises between the party seeking third-party discovery and the third party from whom discovery is sought. In this respect, the Act departs from the Uniform Act.

As per the Uniform Act, Section 1F-6 provides that any application for a protective order or to enforce, quash or modify a subpoena issued under the Act “must comply with the rules or statutes of this State and be submitted to the court in the county in which discovery is to be conducted.” However, in a departure from the Uniform Act, Section 1F-6 further provides that if a dispute arises “between the parties to the action, the party opposing the discovery shall apply for appropriate relief to the court in which the action is pending and not to the court in the state in which the discovery is sought.” 

The North Carolina Comment notes that this additional sentence in Section 1F-6 was intended to mandate language from the Comment to the Uniform Act that suggested disputes between the parties should be raised in the court in which the action is pending. Section 1F-6 took this a step further by requiring disputes between the parties to be resolved in the state in which the action is pending without regard to whether they affect only the parties to the action or the third party from which discovery is sought. As the North Carolina Comment notes, such a limitation “invites gamesmanship between counsel since virtually every dispute over discovery would also ‘affect’ the third party from whom discovery is sought.”

The North Carolina Comment provides three good examples of how Section 1F-6 is intended to operate. Example 1 of the North Carolina Comment indicates that if a dispute arises between the parties to the litigation, the party objecting to the discovery “must resort to the trial court” where the action is pending, and that court “would apply its own laws, including its conflict of laws principles.”

WHEN DO YOU NEED NC COUNSEL?

In considering whether you will need the assistance of local counsel to conduct third-party out-of-state discovery in North Carolina, you should consider the extent to which any disputes may arise with the third party from whom you are seeking discovery. Any such disputes will be controlled by North Carolina’s Rules of Civil Procedure and must be resolved in a North Carolina court. If you do not anticipate any disputes with the third party, the Act provides a fairly easy process for conducting out-of-state third-party discovery in North Carolina leaving any disputes between the parties to be resolved in their home state.

If you or your client are in need of assistance in conducting third-party discovery, or otherwise navigating the law, in North Carolina, the attorneys at Lincoln Derr are available to assist you.  

Jeremy Sugg

Jeremy Sugg handles matters ranging from contract and real-estate disputes to defamation and products liability claims.  Whether for individuals, small businesses or large corporations, he guides his clients through the litigation process with full knowledge of the risks involved and an eye towards the most comprehensive resolution.

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