Discovery within Massachusetts for proceedings outside Massachusetts

[coderoyal]

What is the name of your state? Massachusetts

I am the plaintiff in a case in California Superior Court.

I have not been successful learning the process to obtain a valid subpoena to require a Mass. business to produce business records on a customer. They won't respond to the Cali. subpoena.

I am aware of this Mass. Civil Case statute:

Chapter 223A: Section 11. Discovery within commonwealth for proceedings outside commonwealth


Section 11. A court of this commonwealth may order a person who is domiciled or is found within this commonwealth to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this commonwealth. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this commonwealth, for taking the testimony or statement or producing the documents or other things. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this commonwealth issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath.

My question is, how do I go about applying to the court to be issued a subpoena for the production of business records (or subpoena duces tecum is a deposition is required in Mass.)

Normally, this is a question a clerk can answer, however, when I tried calling the clerk in the county the business is in, she said I was asking for legal advise, and didn't answer. I disagree, this is a procedurer question which clerks in my experience can answer, but I'm not having any luck getting this information from a Mass. court.

I'm hoping that someone may have some experience in this matter. I can obtain the Letters Rogatory and Commission letter from a Cali. Court with no issue.

Thank you,
Alan

 

[seniorjudge]

Get a Massachusetts lawyer.

 

[coderoyal]

Already tried. Never recieved any calls back.

 

[Quaere]

You are correct that the clerk can and should advise you of the procedure used in the MA court. Call the court again and if the clerk won’t help ask to speak to his/her supervisor.

They will probably require you to file a miscellaneous motion to open a case in their court. The fee is usually under $50.00.

It is in everyone’s best interest for you to know exactly what they want, where to send it, how much to pay, etc.

Some courts will ask you to submit a completed subpoena with your motion so that all they have to do is put the seal on it and serve it. Other courts will send you a blank subpoena with a seal on it and tell you to complete and serve.

If they don’t want to give you any info, refer them to the MA court page at:
http://www.mass.gov/courts/admin/ji/rssect4.html

The following info is on that page:

A clerk may:
· Help you figure out what papers need to be filed, how to file them and what fees or costs may apply
· Give you information about where things are in the court
· Give you information about where resources are if you need them
· Help you with basic questions about legal procedure
· Answer general questions about how to fill out forms

 

[coderoyal]

No success with the court or the Clerk. However, I found this. It appears that I can go directly to a Notary Public in Mass. and arrange a deposition. It looks like Notary Publics in Mass. have similar authority to issue subpoenas, as a clerk does.

M.G.L. c. 233 § 45: Deposition for use in another State:

A person may be summoned and compelled, in like manner and under the same penalties as are provided for a witness before a court, to give his deposition in a cause pending in a court of any other state or government. Such deposition may be taken before a justice of the peace or a notary public in the commonwealth, or before a commissioner appointed under the authority of the state or government in which the action is pending. If the deposition is taken before such commissioner, the witness may be summoned and compelled to appear before him by process from a justice of the peace or a notary public in the commonwealth.

 

[Quaere]

"Such deposition may be taken before a justice of the peace or a notary public in the commonwealth, or before a commissioner appointed under the authority of the state or government in which the action is pending. "

"If the deposition is taken before such commissioner, the witness may be summoned and compelled to appear before him by process from a justice of the peace or a notary public in the commonwealth."

The notary would only issue a subpoena under the direction of a court officer and apparently in MA that means a commissioner. Have you tried calling a commissioner?

 

[coderoyal]

"Such deposition may be taken before a justice of the peace or a notary public in the commonwealth, or before a commissioner appointed under the authority of the state or government in which the action is pending. "

"If the deposition is taken before such commissioner, the witness may be summoned and compelled to appear before him by process from a justice of the peace or a notary public in the commonwealth."

The notary would only issue a subpoena under the direction of a court officer and apparently in MA that means a commissioner. Have you tried calling a commissioner?

Hi Quaere!

Thank you for pointing this out! I didn't notice that. Fortunately, in the mail is a "Letter of Commission" from the California court, which directs any Notary Public under the Commonwealth to take the deposition, and give them the authority to compel the testimony. I'll be sure to send that to the Notary Public as well.

Have a good day!

 

[MaAttorney]

How to obtain a deposition subpoena {M.G.L. c. 233 § 45}

USING A NOTARY PUBLIC:

The poster above is correct. In accordance with M.G.L. c. 233 § 45, a notary public or justice of the peace may issue a deposition subpoena for cases being heard out of Massachusetts.

The "foreign" court should issue a Commission authorizing the deposition of the witness residing in Massachusetts. This Commission should:

1. Appoint a specific person or deposition service company who shall take the deposition;
2. Mention any evidence that will be requested;
3. Authorize any notary public or justice of the peace of the Commonwealth of Massachusetts to issue a subpoena to compel the witness to appear at the deposition and testify in accordance with M.G.L. c. 233 § 45.

Finally, all you would have to do is send a certified copy of the Commission to the notary public or justice of the peace along with a 'Notice of Deposition'. If he or she is satisfied, a deposition subpoena will be issued.

________________________________________________​

IF YOU DON'T WANT TO USE A NOTARY PUBLIC:

If you don't want to use a notary public, you may obtain a subpoena from the Superior Court in accordance with M.G.L. c. 223A § 11. by following these steps:

• Obtain a Commission from your court. This Commission should appoint a specific person or deposition service company who is authorized to take the deposition of the witness residing in Massachusetts;
• Hire an attorney in Massachusetts who can file a petition in the Superior Court within jurisdiction;
• Have the attorney open a case in the Superior Court
• Fill out the petition to obtain a deposition subpoena for out of state cases and have the attorney file it;

____________________________________________________​

The only other State that I'm aware of that follows a similar procedure is the State of Connecticut. See:
Out of State Commission to Depose a Connecticut Resident - CT Civil Procedures


The Massachusetts Trial Court Law Libraries website has more information available should you need any more information. Their website is:
Massachusetts Law About Subpoenas

 

[Indiana Filer]

a bunch of stuff

Don't necropost! This thread is 4 years old and the original poster is long gone.