Ohio's Adoption of the Uniform Interstate Depositions and Discovery Act to Take Effect on September 14, 2016

As litigators know too well, a key witness or document critical to a case may be located outside of the state where the litigation has been filed. For example, vital testimony or documents in a products liability case brought in a state court in New York might be held by a third-party materials analysis firm located in Ohio. The steps an attorney must take to obtain such information has varied from state to state.

Under Ohio’s Uniform Foreign Depositions Act, Ohio Rev. Code § 2319.09, the out-of-state party must first obtain “any mandate, writ, or commission” from any court of record in the state the lawsuit is pending and then file a new miscellaneous action in an Ohio court where the discovery is sought. Because the process requires an Ohio-licensed attorney, obtaining local counsel is needed. Once the action has been commenced, the Ohio state court will review and grant the petition, thereby permitting a subpoena to be issued compelling the Ohio-based individual or entity to appear and testify or produce documents. Of course, the out-of-state party would still need to perfect service of the subpoena in accordance with Ohio’s Rules of Civil Procedure. Fortunately, however, that complex and time-consuming process is about to change.

On September 14, 2016, Ohio’s version of the Uniform Interstate Depositions and Discovery Act (“UIDDA”) takes effect. The UIDDA, a model statute originally drafted in 2007 that now has been adopted by 39 states, streamlines the process for issuing subpoenas for discovery necessary in out-of-state actions. The adoption of the UIDDA repeals and replaces Ohio Rev. Code § 2319.09 regarding foreign discovery, and it will apply whether the party seeks deposition testimony, production of documents, or other inspections.

The new procedure should be familiar to most practitioners, as the UIDDA parallels Rule 45 of the Federal Rules of Civil Procedure. In essence, the UIDDA makes a subpoena issued by an out-of-state trial court enforceable in Ohio without the need for a separately filed action. The new procedure will permit an out-of-state party seeking discovery in Ohio to simply present to a Clerk of Court in Ohio a subpoena issued by the out-of-state trial court. The Ohio clerk then shall promptly issue the requested subpoena, incorporating the terms of the out-of-state subpoena, under the authority of that Ohio court. The subpoena issued under the UIDDA does not constitute an appearance in the Ohio court, making an Ohio-licensed attorney no longer a requirement, but it is sufficient to invoke jurisdiction over the deponent. Correspondingly, a subpoena issued by an Ohio trial court now will be enforceable in states that have also adopted the UIDDA. As a result, the UIDDA will make it more efficient and inexpensive to depose out-of-state individuals and to obtain discoverable materials located outside of Ohio for Ohio lawyers.

Although adoption of the UIDDA will streamline the process for issuing subpoenas, the new law does not mean out-of-state attorneys will never need local counsel in Ohio. An individual or entity served with a subpoena under the new law may still apply, in accordance with the Ohio Rules of Civil Procedure, for a protective order or to enforce, quash, or modify the subpoena in the court in the county in which discovery is to be conducted. In such case, the out-of-state party would require an Ohio-licensed attorney to appear on its behalf in order to enforce the subpoena.

For more information on how this may impact your business, please contact a member of the Frantz Ward Litigation Practice Group.