What do you do if you are litigating a case in a state outside of Massachusetts, but you need documents or testimony from a non-party witness that resides in (or is incorporated in) Massachusetts? Unfortunately, it’s not simple. But Equity Litigation can help.

No matter what, you will need a subpoena issued by a court with personal jurisdiction over the witness in Massachusetts. If you are an attorney litigating in federal court, the relevant procedure is laid out in Federal Rule of Civil Procedure 45. If you are authorized to practice in the federal district court issuing the subpoena, you may personally issue and sign the subpoena. In other words, you won’t need the assistance of local counsel in Massachusetts. If you are litigating in state court, however, the process is more complicated.

Unlike many states, Massachusetts has not adopted the Uniform Interstate Depositions and Discovery Act (“UIDDA”). (A pending bill to adopt the UIDDA stalled during the 2023-2024 Massachusetts legislative session.) That means you will need counsel that is barred in Massachusetts to assist with this cumbersome process. First, you will need to petition the state court where your matter is pending to issue a commission authorizing service of a subpoena on a witness in Massachusetts. Once you have the commission, you will need to work with Massachusetts counsel to file a new action in the Massachusetts state court in the county where the witness resides for an order authorizing the service of the subpoena. You will then need to effect personal service on the witness in Massachusetts and file a notice of service on the docket of the underlying, out-of-state action. Even after the subpoena has been served, the witness may resist producing the documents you requested, and motion practice in Massachusetts may be necessary. 

Equity Litigation has extensive experience with these procedures. Don’t hesitate to contact us if you have questions or are interested in working with us.