Notary Public & Legal Support Network Blog

Tuesday, November 30, 2010

Deposition of Witness For Out-of-State Court


If you have a case pending in a court outside of the Commonwealth of Massachusetts and need to take the deposition of a witness who resides in Massachusetts, then we can help.

In accordance with Massachusetts General Law,
chapter 233 section 45:


"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 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 notary public in the commonwealth."


This legal support network may issue subpoenas in accordance with M.G.L. ch. 233 sec. 45 to compel the witness to appear at a deposition that you must arrange with a deposition service company.


STEPS YOU MUST TAKE:

>> 1.) Obtain permission from your court or government where the case is pending. For a court, you simply ask the court to issue a commission. The commission should: (a) appoint a specific person or deposition service company to take the deposition and (b) authorize any notary public of the Commonwealth of Massachusetts to issue a subpoena.

>> 2.) You should arrange a date and time to take the deposition with a deposition service company. We like
Esquire Deposition Solutions located in Boston. Or, you can contact Phillbin & Associates, Inc. out of Springfield.
>
Important things to remember:
  • If you require the production of documents at the deposition, you must allow 30 days for compliance. In other words, when the witness is served with a subpoena, the witness must be given at least 30 days notice to produce the records/documents you need.
  • A witness does not have to attend a deposition that is more then 50 airline miles from his home or place of employment.
  • The specific person or deposition service company you choose to take the deposition must be mentioned in the commission you obtain. This person or business becomes the "commissioner".

>> 3.) After you arrange for the deposition and obtain a commission, you should contact us and ask that one of our notaries public issue a Deposition Subpoena. We will need a certified (attested) copy of the commission you received from your court. After we get a copy, we will (a) draft, (b) issue and (c) serve the Deposition Subpoena on the witness.


>> 4.) Finally, you should provide us with a Notice of Deposition that we will serve with the deposition subpoena. The Notice of Deposition should be sent to us along with a copy of the commission and payment.


Go here to request a deposition subpoena for your out of state case:

http://www.IPS-Notary.com/deposition-subpoena.html



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FAQ's:


Does a case have to be opened up in a Massachusetts court in order to get a subpoena to depose a witness in Massachusetts? ~~ No. If you follow the four steps above, then, in accordance with M.G.L. ch. 233 sec. 45, you may ask a notary public or justice of the peace in the Commonwealth of Massachusetts to issue a subpoena to compel the witness to appear at a deposition and/or produce documents.


I called the court in Massachusetts. The clerk is telling me I must open a case in order for him or her to issue a deposition subpoena. Is this true? ~~ If you would rather go through the court to get a deposition subpoena, then you must file a petition with the court and request that a subpoena be issued. A Massachusetts lawyer can file the petition for you in accordance with M.G.L. ch. 223A sec. 11. The clerk of court was correct when he or she told you that he or she couldn't issue a subpoena without opening a case. A clerk of court can only issue subpoenas for the specific court he or she works in. A notary public or justice of the peace, however, has the unique authority to issue subpoenas for all cases, including cases being heard by government agencies such as the Division of Administrative Law Appeals (DALA) or Department of Transitional Assistance (DTA).


Who can take a deposition in Massachusetts? ~~ A notary public, justice of the peace, court reporter, commissioner appointed by a court, or any person authorized to administer oaths, may take a deposition.


Must I provide your office with a Notice of Deposition? ~~ Yes. Massachusetts Rules of Civil Procedure requires a Notice of Deposition be given. Your office can issue the Notice of Deposition and ask us to serve it with the deposition subpoena and any other paperwork you want served. In the event you want us to issue a Notice of Deposition, there is a cost of $25 per notice. It is best if you draft the Notice of Deposition to comply with your local rules of court.


I need documents and other tangible evidence to be produced at the deposition. Are there any special rules I must follow in order to get a subpoena duces tecum? ~~ The witness must be allowed 30 days to comply with the records request. This is commonly refered to as the "30 Day Rule".


What the heck is a subpoena duces tecum? ~~ A subpoena duces tecum is the type of subpoena used to order a witness to appear and produce documents and other evidence.


What if I only need the documents and records of a company? ~~ You should still obtain a commission and attach a letter to the subpoena that we serve advising the deponent that he or she can send certified copies of the records requested in lieu of appearing at the deposition. In this case, we can use our address as the location of the deposition and can waive the appearance of the witness.


What are our fees? ~~ Our office (1) drafts, (2) issues and (3) serves the deposition subpoena. The total cost depends greatly on how far we must travel, round trip, in order to officially serve the subpoena upon the witness. The 'service of process' fee also includes the required witness fee that the process server must tender to the witness when he or she is served with the subpoena. Cost is usually between $150 - $350 per subpoena. The most common cost is $225. --- Our fees are much cheaper then obtaining a subpoena from the court!


What happens if the witness fails to obey the subpoena and doesn't show up for the deposition? ~~ In the rare event this happens, either your office or the commissioner can file a Contempt Complaint in the Superior Court in jurisdiction. The witness could be fined or even put in jail for failing to obey a subpoena.


Can you provide a copy of a valid commission that I can use as a reference in drafting my own commission? ~~ Yes, please click here to review a sanitized copy of a valid commission.


Do any other States follow this same, simple procedure? ~~ Yes, a few other States have similiar laws. For example, you may follow the same procedure in the State of Connecticut. Click here to see their similar procedure.

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All questions regarding the drafting and issuance of subpoeans for out-of-state cases should be directed to Korey Humphreys via email.

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