It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Whether the underlying litigation outside of Massachusetts is pending in state or federal court, to be enforceable a subpoena must be issued for a court with personal jurisdiction over the witness in Massachusetts. If the attorney issuing the subpoena is admitted in the federal district court where the action is pending, that attorney can issue a federal subpoena out of the District of Massachusetts without the assistance of local counsel.

For an action pending in a state court outside of Massachusetts, however, the process is not as simple. Unlike most states, Massachusetts has not adopted the Uniform Interstate Depositions and Discovery Act (“UIDDA”). As a result, a few steps are required before an enforceable state court subpoena can be served on the non-party witness in Massachusetts. First, the party should file a motion in the state court where the action is pending to issue a commission authorizing the discovery sought from the witness residing in Massachusetts. Once the commission has been obtained, the party should retain Massachusetts counsel to file an application with the Massachusetts state court (e.g., Superior Court) in the county where the witness resides for an order authorizing the service of the subpoena. After this court order is granted, the subpoena can be served on the witness by any adult who is not a party to the litigation.

Even when a subpoena is issued, however, a witness may object to producing the requested documents or refuse to appear for the deposition. Such witness recalcitrance may necessitate a motion to compel or other similar requests for judicial relief. The procedure for moving to compel differs in federal or state court, but in either forum it is necessary to retain local counsel. The attorneys at Tymann, Davis & Duffy LLP have extensive experience preparing successful motions to compel subpoena compliance, as well as motions for commissions and the other court filings discussed in this post.