Texas and Missouri, two states that have long flirted with the idea of adopting the Uniform Interstate Depositions and Discovery Act, now appear poised to take action sometime this year.
Texas, an economically and legally significant jurisdiction, took the latest step toward adoption on April 30 when the Texas Supreme Court proposed revisions to Texas Rule of Civil Procedure 201 that would incorporate most of UIDDA’s provisions. Legislation passed in 2023 gave the court until Sept 1, 2025, to consider whether to adopt UIDDA.
In states that have adopted UIDDA, litigators can domesticate out-of-state deposition subpoenas merely by filing them with the clerk of a court in the county in which discovery is sought to be conducted. UIDDA fast-tracks the deposition subpoena process by directing local court clerks to domesticate out-of-state subpoenas without delay, and without the need for judicial intervention.
Interstate subpoenas are typically requested by parties in the “trial” state seeking the testimony of a witness located beyond the trial court’s jurisdiction in the “discovery” state. Most UIDDA adoptions have three key provisions that streamline the process for obtaining an enforceable out-of-state discovery deposition subpoena:
- subpoenas in the local “discovery” state are issued by the court clerk, not by a local judge;
- requests for issuance of the subpoena are not appearances in the “discovery” state; thus, they can be filed by any attorney across the country regardless of bar admission status in the “discovery state”;
- challenges to the subpoena are decided by courts in the “discovery” state, thus allowing local courts to fulfill their traditional function of protecting the state-law rights of deposition witnesses in their jurisdiction.
In states that have adopted UIDDA, litigators can domesticate out-of-state deposition subpoenas merely by filing them with the clerk of a court in the county in which discovery is sought to be conducted. UIDDA fast-tracks the deposition subpoena process by directing local court clerks to domesticate out-of-state subpoenas without delay, and without the need for judicial intervention. Proposed Texas Rule of Civil Procedure 201.3(b)(2), for example, contains this language:
Clerk Duties. When a party submits an out-of-state subpoena to a Texas court clerk, the clerk, in accordance with that court’s procedures, must promptly issue a subpoena for service on the person or entity to which the out-of-state subpoena is directed.
Proposed Rule 201.3(b)(1) declares that filing a request to domesticate an out-of-state deposition subpoena does not constitute a court appearance. For this reason, lawyers not licensed in Texas will be able to file out-of-state deposition subpoenas.
Proposed Rule 201.3(e) allows litigators to apply to the local court for a protective order challenging the enforcement of a clerk-issued out-of-state deposition subpoena.
The UIDDA version proposed by the Texas high court addresses subpoenas directing witnesses to attend and give testimony at a deposition on oral examination or written questions and to produce documents or tangible things. Notably, the Texas version of UIDDA does not allow court clerks to domesticate out-of-state subpoenas for entry on premises. Issuance of these subpoenas will continue to be governed by existing Texas rules requiring a court order for premises inspections for both in-state and out-of-state litigation.
The state high court has opened a public comment period on the proposed rule changes. Texas lawyers have until Aug. 1, 2025, to offer comment on the revisions.
Out-of-state deposition subpoenas for Texas-based witnesses are currently governed by Texas Rule of Civil Procedure 201.2, which requires the attorney seeking evidence in Texas for an out-of-state proceeding to obtain a “mandate, writ, or commission” from the court where the lawsuit is pending. Only when presented with one of these documents can Texas courts compel the witness to appear and testify in a deposition seeking discovery in an out-of-state lawsuit.
UIDDA has already been adopted by 46 states and the District of Columbia. Massachusetts and New Hampshire remain notable UIDDA holdouts. In those jurisdictions, out-of-state deposition subpoenas will require a court order and possibly the assistance of local counsel. There is another minor “gotcha” in jurisdictions that have not adopted UIDDA. Some adopting states – Alabama, Georgia, and Utah – added reciprocity provisions that forbid lawyers from non-adopting states from using the UIDDA fast-track subpoena processes.
In Missouri, state legislators have been considering UIDDA for over five years; in each legislative session, several bills proposing to adopt UIDDA have been introduced but failed to see passage. This session, however, may be different. House Bill 176 passed the Missouri House of Representatives on April 2 by a 142-9 vote. Over in the Missouri Senate, H.B. 176 was favorably reported out of the Judiciary and Civil and Criminal Jurisprudence Committee on May 7. The legislative session is scheduled to end on May 16.
A helpful overview of UIDDA, its underlying rationale, and key provisions can be found in New Jersey Law Revision Commission Final Report Relating to the Uniform Interstate Depositions and Discovery Act, Seton Hall Journal of Legislation and Public Policy, Vol. 37, Iss. 2 (2013). More recently, state supreme courts in Nevada, Quinn v. Eighth Judicial Dist. Court of Nevada, 410 P.3d 984 (Nev. 2018), and Virginia, Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440 (Va. 2015), have applied UIDDA to discovery disputes in their jurisdictions.
