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Domesticating A Foreign Document Subpoena in Pennsylvania: Save Time to Comply with Pennsylvania’s Notice Rule

By Josh Voss

So you’re an out-of-state attorney and you want to quickly domesticate in Pennsylvania a subpoena from your jurisdiction for third-party records. The good news is the actual domestication and issuance is easy and fast. The bad news is that because of a statewide rule, service and compliance is slow. Here’s how all of it works.

Pennsylvania is among three-dozen-plus states (as well as the District of Columbia and the U.S. Virgin Islands) that has adopted the Uniform Interstate Deposition and Discovery Act (UIDDA), 42 Pa.C.S. §§ 5331-37. (For a full listing of states that have adopted the UIDDA, see the Uniform Law Commission’s website on the UIDDA: http://www.uniformlaws.org/‌Act.‌aspx?‌title=Interstate%‌20Depositions%20and%‌20Discovery%‌20Act.) The physical process for domesticating a subpoena in Pennsylvania (be it a subpoena to appear and testify or a subpoena to produce documents and things) generally only requires the filing of a civil cover sheet, a praecipe to domesticate, the foreign subpoena, and a listing of counsel in the foreign matter. To receive the Pennsylvania subpoena, some counties provide you a blank subpoena that you can complete back at the office, some require you to complete the subpoena on the spot at the time of filing, and, at least one County (Philadelphia) permits you to use an electronic subpoena system once your docket is open (this is, by far, the most convenient option I’ve used to date). All of the foregoing is simple and usually only requires a couple of hours from start to subpoena in hand. And, as I recommended in a prior article on this topic, doing all of this with local counsel, in Pennsylvania or any jurisdiction, is usually the most efficient way to go. See Seiberling and Voss, Local Counsel and the UIDDA: Must You Retain? Should You Retain?, The Legal Intelligencer (July 29, 2015), available at http://www.thelegalintelligencer.com/‌id=1202733321744/‌Local-Counsel-‌and-‌the-‌UIDDA-‌Must-You-‌Retain-Should-‌You-Retain?slreturn=‌20170420154802.

But, as the headline to this article suggests, just because you or your local counsel have been issued a subpoena to produce documents, doesn’t mean you can immediately serve it and get your documents from a third-party. Far from it. Pennsylvania’s UIDDA specifically notes that the Pennsylvania Rules of Civil Procedure relating to service and compliance with subpoenas apply. The statute specifically cites Rules 4009.21-4009.27 as among the rules covered by the statute.

Rule 4009.21 is the fly in the ointment for any “quick” compliance with a document production subpoena you may be seeking. That rule requires 21-days notice to all other parties in the action of the intent to serve the document subpoena. Critically, notice to the subpoena target is not required. Not until the 21 days have passed can you serve the subpoena, and you can only serve it if objections to the subpoena haven’t been filed by the other parties. Accordingly, once you factor in this 21-day notice period, plus the time for actual service, plus a reasonable period of time for the subpoena target to comply, you end up with a considerable delay between when you sought the subpoena and when you may finally receive documents from the subpoena target. (Note: the above discussion concern solely subpoenas to produce documents and things; subpoenas to appear and testify can be immediately served.)

All of the foregoing means really just one thing: if you know you’re going to need documents from a third-party in Pennsylvania, don’t wait too long to start the process.

Josh’s practice focuses on state government litigation, appellate practice, the Right-to-Know Law, and grand jury investigations. His experience includes appellate matters before the Third Circuit Court of Appeals, the Pennsylvania Supreme Court, the Superior Court, and the Commonwealth Court, as well as several matters in the Commonwealth Court’s original jurisdiction. Josh also advises clients on interactions with state government, including advice regarding enacted or pending legislation/regulations, potential challenges to state government laws and administrative decisions, and responding to state government inquiries.