Proposal: Replace Letters Rogatory and Commissions with Interstate Federal Subpoena

A quick way to decrease the attractiveness of federal courts in diversity cases (i.e., to encourage diversity cases to be brought in state courts) would be to permit litigants in state courts to use the federal courts for service and (optional) enforcement of interstate subpoenaes.

Last Update: October 23, 1999

How Letters Rogatory and Commissions Work

One of the main reasons I, as a litigator, have chosen to file cases in the federal courts is the archaic way in which out-of-state subpoenaes in a state-court proceeding are to be issued and enforced. The requirements are so complicated, time-consuming and costly, that many lawyers, including myself, avoid the state courts in matters involving out-of-state witnesses and out-of-state documents.

The procedure we try to avoid is known as the "commission" or "letters rogatory" which is the process required in a state court action to be able to obtain the issuance and service of an out-of-state subpoena. In New York, see Rules 3108, 3113(a), 3111 and 328 of the New York Civil Practice Law and Rules (CPLR).

CPLR Rule 3113(a) is the New York rule permitting depositions to be obtained from outside of New York State CPLR Rule 3113(a) - Conduct of the Examination before Trial.

CPLR Rule 3111 is the New York rule permitting books, papers and other things (loosely referred to as documents) to be demanded for production at a deposition CPLR Rule 3111 - Production of Things at the Examination.

CPLR Rule 3108 is a seldom-used rule permitting depositions to be taken, both inside and outside New York State, on written questions (served on the parties and perhaps seen by the witness) days or weeks in advance of the deposition CPLR Rule 3108 - Written Questions - When Permitted.

Finally, CPLR Rule 328 is the New York rule permitting depositions in New York for lawsuits which are being litigated in a court not in New York State CPLR Rule 328 - Assistance to Tribunals and Litigants Outside the State.

For example, when I bring an action in New York with witnesses in New York and California, it is easy to serve and enforce a subpoena in New York (the forum state). I merely fill out the form of subpoena, give it to a process server, and wait for the process server's return of service (stating under oath that the subpoena was served on a particular person at a specified time, date and place).

Then, on the date noticed for the witness to testify and to produce documents, I merely show up (with my court reporter) and take the testimony of the witness as well as copies of the requested documents which he/she has produced.

However, in the case of one or more California witnesses, I have to do the following (and sometimes have to do the following more than one time in a single action) to obtain and enforce letters rogatory or a commission (to obtain issuance of the needed subpoenaes):

Further Discussion of Proposal and Benefits

Any further depositions needed in California (and not included as part of the original motion) or any depositions of witnesses in other states would take additional time, costs and delay.

This procedure is so cumbersome and costly that attorneys like myself file in federal court to avoid such procedure. Yet, if a federal statute or even court rule were passed enabling multi-state subpoenaes to be handled out of federal court in the same way that subpoenaes are issued and served in federal civil litigation, the procedure would take virtually no time at all, and would be like this:

All that needs to be done is to permit multi-state subpoenaes to be issued out of and enforced in federal court, and the federal court system will lose tens of thousands of cases. The additional burden on the federal courts is minimal because the subpoenaes are not even filed in federal court, and most subpoenaes do not require court intervention.

Finally, any legislation or rule should probably permit the witness or opposing party to resist the subpoena in either the out-of-state federal court, or the state court in which the action was originally brought (which issued the commission or letters rogatory). The anticipated activities (i.e., burden) on the federal courts would be far less because of the natural alliance and cooperation between the witness and opposing party (meaning the party not seeking the subpoena) who could work together to resist enforcement in the state (herein, New York) court.

Carl E. Person

Copyright © 1995, 1999 by Carl E. Person