Obtaining Discovery From Massachusetts Witnesses For Use In An Out Of State Action

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It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate. Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet. A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

Whether the underlying litigation is pending in state or federal court outside of Massachusetts, a subpoena must be issued from a court with personal jurisdiction over the witness to be enforceable. For an action pending in federal district court, the subpoena must be issued from the District of Massachusetts. As long as the attorney is admitted in the federal district court where the action is pending, that attorney can issue a federal subpoena out of the district of Massachusetts without the assistance of local counsel.

For an action pending in state court outside of Massachusetts, a few more steps are required before an enforceable subpoena can be served on the non-party witness in Massachusetts. First, the party should move the court where the action is pending to issue a commission authorizing the deposition of the witness residing in Massachusetts. Once the commission has been obtained, the party should retain Massachusetts counsel to file an application with the Superior Court in the district where the witness resides for an order authorizing the service of the subpoenaOnce the order is granted, the subpoena can be served on the witness by any adult who is not a party to the litigation.

Even when a subpoena is issued, however, a witness may object to producing the requested documents or refuse to appear for the deposition.The procedure for moving to compel differs in federal or state court, but in either forum it is necessary to retain local counsel. The attorneys at Fitch Law Partners LLP have extensive experience preparing successful motions to compel compliance with the subpoena.

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