Taking a Deposition in a Criminal Case Out of State

While it is not too often that one may need to take a deposition in a criminal case, it may be prudent to do so if one anticipates that a witness will not show up for trial and that witness is beyond the judge’s subpoena, when a witness may die soon, or when one needs to take the deposition of a custodian of record for documents outside California.

Because of this need, a criminal defense attorney needs to be familiar with certain civil procedure guidelines that control depositions and subpoenas for production of business records, as well as to how to enforce such a subpoena.

Indeed, a nonparty deponent can object to the proposed location of a deposition if the identified place for compliance (the deposition or where documents are to be produced) is not within seventy-five miles of the deponent’s residence or within 150 miles of the deponent’s residence in the county where the case is pending. California Code of Civil Procedure § 2025.250(a). Neither a stipulation between the parties nor a court order can force a nonparty to travel beyond the geographic limits set by 20205.250(a).

If the deponent lives outside California, one must look to the laws of the state where the nonparty resides. As a general rule, a nonparty who is not a California resident at the time of service cannot be compelled to attend a deposition in California. California Code of Civil Procedure § 1989. However, an out-of-state nonparty residing within the United States can be compelled to attend a deposition or produce evidence pursuant to the laws of the states where he or she resides. California Code of Civil Procedure § 2026.010(c); see also America Online v. Nam Tai Elecs., Inc. (2002) (custodian of Virginia corporation was required to produce business records under Virginia law for California action); see Hague Convention for guidance on depositions outside the United States.

The laws of the state where the nonparty resides may require the deposing party to comply with the Uniform Interstate Deposition and Discovery Act (UIDDA), the Uniform Foreign Depositions Act (UFDA) or a non-uniform state procedure.

If the state where the nonparty resides has adopted the UFDA or certain nonuniform state procedures, the subpoenaing party may be required to obtain a “commission” from the court where the action is pending that authorizes taking the deposition to be taken outside the foreign state. A commission is something our office has helped an out of state party secure to take a deposition in California.

A commission is issued on request by the deposing party from the clerk in the superior court where the action is pending. See Cal. Civ. Proc. § 2026.010(f). California does not require the subpoenaing party to obtain a commission for discovery outside California. Id.

In contrast, if the state where the nonparty resides has enacted a version of the UIDDA, no authorization from the forum state is required.

California has adopted a version of the UIDDA. Cal. Civ. Proc. §§ 2029.100 to 2029.900. Under California’s version of the UIDDA, to obtain discovery from a nonparty outside California, the deposing party must submit a copy of the subpoena to the clerk of court in the nonparty deponent’s resident state in which discovery is sought and arrange for service of the subpoena pursuant to the state’s laws where the nonparty resides. See Cal. Civ. Proc. § 2029.300(a).

A nonparty deponent is entitled to recover the same witness fees and mileage costs payable to a trial witness, whether or not requested by the nonparty deponent. Cal. Civ. Proc. § 2020.230. A nonparty that is subpoenaed to appear for a deposition must be paid $35 for one day of attendance, including twenty cents for each mile actually traveled, both ways. Cal. Civ. Proc. § 1986.5. The payment shall be made by the party noticing the deposition either when the deposition subpoena is served (this method is recommended to encourage attendance) or when the nonparty appears for deposition. Cal. Civ. Proc. § 2020.230(a). No mileage or witness fees are payable to a nonparty served with a business records subpoena. Edmon & Karnow, Cal. Proc. Guide: Civ. Proc. Before Trial, § 8:579.

For more information about discovery in a criminal case, please click on the following articles: