Taking Out-of-State Depositions in Connecticut Actions and Taking Depositions in Connecticut for Foreign Actions

| Posted on Sep 13, 2010

There is little to guide the Connecticut divorce practitioner who wants to secure the testimony of an out of state witness for use in a Connecticut case. There is even less to light the way when seeking to compel the testimony of a local resident in an action commenced in a foreign jurisdiction. This article will attempt to lift the cloak of mystery surrounding these procedures.

  1. Taking the Deposition of an Out-of State Witness in a Connecticut Case
    1. Deposing an Out of State Party

Often a Connecticut lawyer will tell a client that it makes little difference who commences a divorce action. One reason for rethinking that statement is found in Practice Book § 13-29 — which indicates that a non-resident plaintiff may be compelled to give a deposition in the county where the action is commenced or pending. The deposition may be taken on notice, and a subpoena is unnecessary. In contrast, P.B. § 13-29 (c) states that a non-resident defendant need not travel more than thirty (30) miles from his or her residence or outside the county of his or her residence in order to be deposed, unless the court orders otherwise. Accordingly, a non-resident defendant will attend a deposition in Connecticut under only the following circumstances: (a) voluntarily; (b) if he or she is served with a subpoena in Connecticut; or (c) if the judicial authority so orders. This is true regardless of whether the defendant lived out of the state at the commencement of the action, or out of state during the pendency of the action. Likewise, a plaintiff who relocates during dissolution of marriage action is, nevertheless, compelled by P.B. § 13-29 (a) to give a deposition in Connecticut unless the court orders to the contrary.

Under what circumstances will the court order a non-resident defendant to be deposed within the boundaries of this state? In Sansone v. Haselden, 1 Conn. L. Rptr. 520, WL271143 Superior Court (1990), Judge Berdon enumerated the criteria to be considered. These include the financial circumstances of the parties; whether the plaintiff seeking to take the deposition offers to pay the defendant’s travel and living expenses; whether the defendant was personally served in Connecticut with the writ and complaint while he or she was a resident and thereafter voluntarily moved out of Connecticut; the hardship to travel imposed on the prospective deponent; the availability of counsel to promptly resolve disputes which require a judicial determination, and; the effectiveness of obtaining the discovery through other means such as written interrogatories or the taking of the defendant’s deposition in Connecticut at the commencement of trial. Presumably, an out-of-state plaintiff can apply these standards in seeking a protective order under P.B. § 13-5 that a deposition not be held in Connecticut.

If the deposition must be taken outside Connecticut, the rules and procedures relevant to non-parties will apply if attendance of the party needs to be coerced.

    1. Deposing the Non-Party Out-of-State Witness: Law of the State in which the Deposition is to be Taken

Solving out of state deposition issues begins not with Connecticut law, but with the law of the state where the deponent lives. See David I. Milstein, A Road Map to Interstate Discovery Practice, 4 Practical Litigator 72-81 (1993). The following steps are recommended to secure process in a foreign state:

  1. Determine the type of notice the foreign state requires.
  2. Determine whether the deponent’s state requires a writ or commission from the foreign state as a prerequisite for obtaining process in the deponent’s state.
  3. Determine how to obtain service of process in the foreign state.

Practitioners may find as many as five (5) different types of statutes governing issuance of process for out of state depositions. Milstein, Road Map, at p. 73. Some jurisdictions allow out of state commissioners to issue local subpoenae, others permit a clerk in that state to issue the subpoena, a few mandate judicial approval of the subpoena and still others require a motion to the court before issuing a subpoena. Id. At 73-74. The foregoing leads to two conclusions. First, a Connecticut attorney should fashion the order of commission (see Section C of this article) to meet the standards of the foreign state. Secondly, in order to determine how to act in accordance with the laws of the foreign jurisdiction, it will be prudent and, indeed necessary in many instances, to consult a lawyer in that state.

When an out of state witness fails to appear after proper service of the subpoena, a motion to compel will have to be filed in the jurisdiction where the deponent resides. The Connecticut attorney might, under the foreign jurisdiction’s laws and rules, be permitted to make the filing. However, given his likely ignorance of the jurisdiction’s procedures and the logistical difficulties in arguing such a motion, it will in most instances be prudent to retain counsel in the foreign state.

Some states do not require court reporters to be certified. Since a non-certified deposition could adversely affect the admission of the deposition into evidence in Connecticut, this contingency should be anticipated.

    1. Deposing the Non-Party Out of State Witness:

Connecticut Law Section 52-148c(b) states in pertinent part:

In any other state or country, depositions for use in a civil action…within this state shall be taken before a notary public, a commissioner appointed by the governor of this state, any magistrate having the power to administer oaths or a person commissioned by the court before which such action or proceeding is pending, or when such court isnot in session by any judge thereof. Any person so commissioned shall have the power by virtue of his commission to administer any necessary oath and to take testimony…

In virtually all instances, Connecticut attorneys seek “a person commissioned by the court” to take the out of state deposition. This is effected by filing a motion accompanied by a detailed order appointing the commission in question. The order should clearly state the name and address of the deponent; the name and address of the person appointed as the commission; the date and time on which the deposition is to take place; those documents and other items to be produced by the deponent; and the court which has issued the order. Regarding the latter, it is advisable to place the words “State of Connecticut” above the caption so as to clearly identify the judicial authority rendering the order.

Whom should the attorney select as the commission? Except to say that the commission must be a “person” the statute is silent in this regard. There appears to be no reason why the attorney filing the motion cannot be named the commission. Indeed, this would be consistent with the statutory language that “any person so commissioned shall have the power…to take testimony” Inasmuch as the deposition will likely be taken before a notary public (see § 52-148c[b]), appointing a court reporter who is also a notary in the state in question likewise makes sense. An attorney in the foreign state can also serve as the commission. However, to the extent that the commission’s presence at the deposition is required, economy would dictate that out-of-state counsel (who presumably will charge by the hour) not be named to serve this function. An exception is where the foreign lawyer will actually be taking the deposition. See Cassinelli Brothers Construction Company v. Gray, 16 Conn.L.Rptr. 1996 WL 278330 (1996).

The text of § 52-148c(b) is unclear in several respects. For example, it indicates that a deposition can be taken before a notary public, a commission appointed by the governor, a magistrate or a person commissioned by the court or a judge. Does this provision imply that a notary may take a deposition in a foreign state without being appointed to do so? Perhaps. Nevertheless, if one wants to use a foreign notary as the commission, prudence dictates having the notary appointed for this purpose.

The statute goes on to say “any person so commissioned shall have the power by virtue of his commission to administer any necessary oath and to take testimony.” Does this mean that only a commission appointed by the court is empowered to administer the oath to the witness? While the statute does not say, the oath should be administered by the person commissioned. There is nothing to preclude the oath also being administered by the court reporter as well.

There is also a provision indicating that the person commissioned will have the power “to take testimony.” Does this prevent counsel for the moving party seeking the deposition from questioning the out of state deponent when the attorney is not appointed as the commission? This is unlikely given the ambiguity of the term “take testimony.” Moreover, the sentence in question, by its terms, does not preclude one other than the commission from “taking testimony.”

  1. Deposing Witnesses in Connecticut for Foreign Action

C.G.S. § 52-148e(f) states:

Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action…pending in…any other state of the United States…on application of any party to such civil action or probate proceeding.

What then is a Connecticut lawyer to do when contacted by an out of state attorney seeking to take a deposition in the State of Connecticut? The first question to ask is whether the practitioner has secured a court order in the foreign jurisdiction permitting the taking of the deposition. The above-quoted statute requires an “application” by the party, presumably in the state where the action is taking place.

Can a subpoena be issued by the practitioner pursuant to the out of state order? The above section says that depositions are “taken in like manner” to the other provisions set forth in C.G.S § 52-148e. Subsection (a) of this statute indicates that a commissioner of the superior court may issue a subpoena…” Accordingly, a local attorney appears to have the authority to issue the subpoena based on the order of the out of state court. In this regard, counsel should secure a certified copy of the order in question. In the event that, after issuance of the subpoena, the witness fails to appear at the deposition, the attorney should then move to compel his attendance through a capias. C.G.S. § 52-148e(e). Under these circumstances, a court has the power to incarcerate the recalcitrant witness “until he signifies his willingness to comply with” the subpoena.

What recourse is available to a witness who is issued a subpoena pursuant to an out of state order? According to the Connecticut Supreme Court, his options are limited. In Lougee v. Grinnell, 216 Conn. 483, 582 A. 2d 456 (1990), a defendant moved to quash a subpoena pursuant to an order issued by a Texas court. The witness claimed that the evidence sought was immaterial and unnecessarily duplicative. The Supreme Court held that Connecticut”s role vis a vis an out-of-state deposition properly commissioned is confined to “supervising the deposition.” The court therefore declined to rule as to the materiality of the information sought and allowed the deposition to proceed. Compare, Fairbanks A merican Inc. v. American Home Assuranc e Co ., 5 Conn.L.Rptr. 470, 1992 WL 18794 (1992), where the court declined to determine in a Connecticut action whether out of state deponents were experts and therefore entitled to compensation. In Fairbanks, the Superior Court indicated that it was within the province of the New York court to make that determination. This opinion, decided after Lougee, appears to contravene its spirit, if not its mandate. Also at odds with Lougee is P.B. 13-28(e) which permits a Connecticut court to quash or modify a subpoena issued pursuant to a foreign court order, if it is “unreasonable and oppressive or if it seeks production of materials not subject to production under [P.B. § 13-28(c)]…”

  1. Conclusion

While taking depositions across state lines is no doubt more complicated than deposing a local witness, the procedure is not overwhelming in its complexity. If the practitioner acquires familiarity with the laws of the foreign state and applies it to local law, his or her task will be simplified.

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