Attorneys say that there will be less red tape in the way of out-of-state counsel who want to conduct discovery in Pennsylvania now that the state has jettisoned its homegrown rules in favor of a uniform act that has been adopted by 26 other states.
Attorneys also say that it is more efficient and streamlined for Pennsylvania attorneys to conduct discovery and obtain depositions in other states that have adopted the Uniform Interstate Depositions and Discovery Act. The uniform law was drafted by the National Conference of Commissioners on Uniform State Laws.
State Senator Stewart Greenleaf, R-Montgomery/Bucks, the primary sponsor of the legislation, said that when the uniform act is in place attorneys and their offices don’t have to spend hours going over how to get litigants and witnesses residing in other states to honor subpoenas.
There are “Philadelphia lawyers and Pennsylvania lawyers who are going all over the nation, so we need this and so we’re hopeful other states will adopt it as well,” Greenleaf said.
One way that the uniform act is more efficient, Greenleaf said, is that local counsel on the ground in the “discovery state” don’t have to be obtained and that there is less need for judicial oversight.
The uniform law “avoids all that type of additional red-tape bureaucracy that you would have to go through,” Greenleaf said.
“As more and more states adopt it, and as lawyers become more familiar with it, the law creates a smoother process and places less burden on judges,” said Amy L. Groff, a Harrisburg attorney who is chair of the Pennsylvania Bar Association’s civil litigation section. “It doesn’t require a judge to act on it. It becomes an administrative process in Pennsylvania.”
Under the new law, a litigant from another state must submit a subpoena to the Pennsylvania prothonotary in the jurisdiction in which the subject of an order resides, works or regularly transacts business in person. Then, prothonotaries must promptly issue subpoenas for service upon the subjects of the “foreign” subpoenas.
Pennsylvanians may still apply to courts for orders to modify or quash out-of-state subpoenas.
Groff said many of the Pennsylvania Rules of Civil Procedure still apply and many of the rules “we believe will adequately protect residents in the commonwealth who may be subject to a subpoena.”
Pennsylvania law still preserves all rights that lawyers and their clients have regarding having depositions taken, such as arguing that the depositions are irrelevant or burdensome, Pennsylvania Bar Association President Thomas G. Wilkinson Jr. said.
The uniform law is “equally welcome by plaintiff and defense counsel,” Wilkinson said. “The practice of law is increasingly becoming of an interstate nature.”
It’s very common for there to be multiple cases involving similar legal theories or issues being pursued in more than one state, and there are frequently situations in which witnesses need to be deposed in other states, such as when they move to other states or are transferred to other locations, Wilkinson said.
One of the members of the council for the litigation section found a noticeable difference in conducting discovery in Maryland, which has adopted the uniform law, in comparison to one of his colleagues who was having to conduct discovery in Pennsylvania before the law changed, Groff said.
Groff said the section favored the legislation because “it was our belief, that as more states adopt the law, it’ll be more efficient and inexpensive” to obtain discoverable materials out of state.
Greenleaf said it was good that Pennsylvania was joining other states in adopting the uniform law now rather than being one of the last of the pack, as Pennsylvania often can be, in enacting legal reforms that are trending in multiple states.
Pennsylvanians may voluntarily give testimony or produce documents in response to legal matters in other states without having to go through a formal process.
Governor Tom Corbett signed the law October 24.