Few litigation tasks have imposed as many hurdles of substantial cost but questionable necessity as attempting to take civil discovery in one State for use in a lawsuit in another. Thankfully, Connecticut recently joined the nationwide trend towards modernizing interstate discovery by enacting the Connecticut Interstate Depositions and Discovery Act (CIDDA). Codified at sections 52-655 to 52-660 of the General Statutes, the CIDDA applies to all discovery requests in proceedings pending on or postdating July 1, 2023.
Under the prior system, obtaining discovery from a nonparty resident in Connecticut for use in litigation elsewhere entailed a cumbersome, multi-step process. A party's attorney initially had to present the discovery subpoena to the out-of-state court to obtain an order known as a "commission." Then, the attorney had to present the subpoena to a locally licensed lawyer, or retain local counsel to present the order to a Connecticut judge, to reissue and domesticate the foreign subpoena—but only on a showing that the evidence sought was material to the out-of-state case, and that the subpoena otherwise met timing and content requirements. The converse act of obtaining out-of-state discovery for use in Connecticut litigation historically demanded similar steps, dependent in part on other state laws' particulars.
The Uniform Law Commission's Interstate Depositions and Discovery Act (UIDDA) meant to cut through this morass. That model legislation would permit attorneys to present an out-of-state subpoena to a court clerk in the forum where discovery is sought, for reissuance in substantially similar form, without needing to involve a judge (at either end) or local counsel (in the discovery forum). Nearly all States and territories have adopted a variant of the UIDDA, sometimes adding the option of having a locally licensed attorney reissue the subpoena as an alternative to the clerk. Connecticut was among the longest holdouts—until now.
The CIDDA simplifies procedures for domesticating foreign deposition and document subpoenas in Connecticut and, conversely, for deposing residents of most other States for use in a Connecticut case.
First, to produce a valid in-state discovery subpoena for an out-of-state case, the CIDDA eliminates the need to secure a commission elsewhere, bring that order to an in-state judge or attorney, and demonstrate the evidence's materiality. Instead, out-of-state litigants need only submit the following items to the Clerk of Court in the district where the discovery is sought: (1) an original or true copy of a foreign subpoena; (2) a completed form prescribed by the Connecticut courts; and (3) the required fee.
The statute defines a foreign subpoena as "a subpoena in a civil or probate action issued under authority of a court of record of a foreign jurisdiction." This definition suggests that the CIDDA's expedited procedures extend only to subpoenas for use in pending lawsuits, or otherwise issued by or on behalf of courts—and not, for example, to arbitral or administrative subpoenas lacking any immediate judicial involvement or oversight. Moreover, for this purpose, the statute defines a "subpoena" to include those for testimony; production of documents, records, other tangible items, or "electronically stored information"; and the inspection of premises. This definition may exclude by implication requests for medical examinations in tort cases, among other types of discovery demands besides those listed. These questions and others remain subject to future analysis.
The CIDDA leaves the clerk without discretion to reject a legally compliant submission. Rather, on receiving the items described above, the "clerk shall, in accordance with the respective court's procedure, promptly issue a subpoena for service upon the person to which the foreign subpoena is directed." The reissued subpoena must (1) incorporate the terms used in the foreign subpoena; (2) contain or attach an affidavit listing the names, addresses, and telephone numbers of all counsel of record and of any unpresented party in the relevant out-of-state proceeding; and (3) identify the case caption and docket number for the out-of-state action, along with the name and address of the reissuing court.
In general, the reissued subpoena is expressly treated like a discovery subpoena in a Connecticut case, subject to standard statutory rules for service, notice, timing, and the conduct of discovery. Further, any motion to enforce, quash, or modify the subpoena must be litigated in Connecticut by reference to Connecticut statutes and court rules. Short of litigation, however, merely domesticating a subpoena "does not constitute an appearance in any court of this state."
Second, the CIDDA separately amends the statute listing the authorities before whom any out-of-state discovery must be taken, in a manner that unambiguously eliminates any need to obtain a commission in Connecticut to pursue discovery elsewhere.
As relevant here, this provision formerly mandated that all such discovery "shall be taken before" a notary public, a commissioner appointed by the Governor, a magistrate who could swear in witnesses, or else "a person commissioned by the court before which such action or proceeding is pending," who (like the others) would be able "to administer any necessary oath." Although referring only to taking depositions, this command extended as well to document requests, which in Connecticut must accompany testimonial subpoenas. The statute's inartful language did not make clear whether an in-state commission was indispensable to take discovery in a foreign UIDDA jurisdiction that no longer required such a formality, though many practitioners continued to secure commissions in a belt-and-suspenders approach.
The CIDDA explicitly exempts from this provision all requests for discovery in States or territories with "laws substantially similar to" the CIDDA—i.e., any UIDDA jurisdiction—which is almost all of them. As a result, in the usual case, Connecticut attorneys need not secure a Connecticut judge's order to obtain discovery in most other jurisdictions for use in Connecticut proceedings. It remains possible, however, that in rare and unforeseen cases, a situation's peculiarities or another jurisdiction's law might require a Connecticut court's involvement.
In sum, the CIDDA removes unnecessary, outdated obstacles to interstate civil discovery, thereby reducing the time and expense required to conduct it. From this point onward, attorneys litigating outside Connecticut may pursue discovery here without first procuring one or more court orders or formally retaining local counsel—at least until the subpoenaed party resists compliance, bringing on a motion to quash or compel. And for attorneys litigating in Connecticut, the CIDDA may ease access to relevant documents and testimony, allowing parties to bolster critical case theories and potentially dispositive defenses, that might not previously have been worth the hassle to pursue. For all affected parties, the CIDDA aligns Connecticut's discovery procedures with those of nearly the entire country—a welcome development in an increasingly interconnected world.
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