A Capehart Scatchard Blog

Subpoena Rule Change Simplifies Process to Issue NJ Subpoena for Out-of-State Case

By on November 6, 2015 in Blog with 0 Comments

It is not well known, but New Jersey changed its rules of civil procedure, as of September 1, 2014, making it easier for out-of-state attorneys to serve subpoenas in New Jersey for an out-of-state case without having to retain NJ counsel. Previously, an out-of-state attorney would have to retain a NJ attorney, have them file a miscellaneous action, and obtain a court order for authority to issue a subpoena. However, effective September 1, 2014, New Jersey adopted the Uniform Interstate Deposition and Discovery Act. It made it easier for out-of-state counsel to serve a subpoena in NJ and made it easier for a NJ attorney to serve an out-of-state subpoena.

Pursuant to the new rule, R. 4:11-4(b), an out-of-state attorney can either file the foreign subpoena, along with a NJ subpoena, with the clerk of the court, and ask the clerk to issue a subpoena or send it to a NJ attorney who can issue the subpoena. If the out-of-state attorney decides to use the clerk to issue the subpoena, there is a filing fee to be paid. It would be filed with the clerk in the county where the discovery is sought (i.e., typically where the witness resides or where the entity subpoenaed is located).

However, if the out-of-state attorney uses a NJ lawyer, then the subpoena is not filed with the clerk. The foreign subpoena and the NJ subpoena would simply be sent to the NJ lawyer who can issue the subpoena. Our court rules permit either a clerk of the court or a NJ lawyer to sign a subpoena. There is no longer a need for an order prior to the issuance of a subpoena, regardless of whether the clerk issues the subpoena or a NJ attorney issues the subpoena.

If the out of state attorney is also licensed in NJ, the process is even easier. No other attorney needs to be retained and the attorney would simply prepare a NJ subpoena and follow the requirements of section (3) of this rule with regard to the contents of the subpoena.

Under this rule, the subpoena has to include the name of the court issuing the subpoena, incorporate the terms and conditions used in the foreign subpoena (to the extent they are not inconsistent with our rules), advise the person of the right to move or quash the subpoena, list the names and contact information of all counsel of record, and list the caption and case number of the foreign case.

The rules of the foreign jurisdiction still need to be followed to issue this NJ subpoena. However, if the other state has adopted the Uniform Interstate Deposition and Discovery Act, as now permitted in New Jersey under R. 4:11-5, a subpoena to take an out of state deposition of a party may be done by notice. If the witness is a nonparty, then this same procedure can be followed as described above. If the foreign state has not adopted this Act, then the rules of that state would need to be followed to authorize the issuance of a NJ subpoena.

Even though some states (as well as the federal rules) permit the issuance of just a records subpoena, this rule change continues to impose the requirement that any subpoena seeking records must also seek to depose the person. Any subpoena containing a request for records must include language that the records may not be released prior to the date of the deposition to permit time for a motion to quash the subpoena to be filed.

The bottom line is that this rule changes a cumbersome and time consuming process for the issuance of a NJ subpoena to compel evidence in an out of state case and makes it very easy for an out of state attorney to issue a subpoena in NJ without ever utilizing the services of a NJ lawyer. On the flip side though, the adoption of this Act permitted another rule change that has also made it easier for NJ attorneys to issue subpoenas out of state for use in a pending NJ action.

Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.


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