Interstate and International Depositions Act

Subpoenas issued by courts in another state or county (a foreign subpoena) may be enforced in California under the Interstate and International Depositions and Discovery Act. (Code Civ. Proc. §2029.100 et seq.; see also Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 8E-7, §8:620.20.) The Interstate and International Depositions and Discovery Act allows an out-of-state party to serve a subpoena on a third party in California. (Code Civ. Proc. § 2029.300.)

Issuing a Foreign Subpoena

“Pursuant to the Interstate and International Depositions and Discovery Act, a party to a proceeding in a foreign jurisdiction may obtain discovery in California by retaining a local attorney to issue a subpoena.” (Digital Music News, LLC v. Super. Ct. (2014) 226 Cal.App.4th 216, 223, citing Code Civ. Proc., § 2029.350, disapproved on another ground in Williams v. Super. Ct. (2017) 3 Cal.5th 531, 557, fn. 8.) Additionally, a party may take a foreign subpoena to the clerk of the superior court in the county in which discovery is to be conducted and request that the clerk issue a local subpoena. (Code Civ. Proc., § 2029.300(a).)

Reciprocity

There is no reciprocity stated in the Law Revision Commission Comments that follow Section 2029.600. The Comment does not represent that the statute was designed to protect courts and citizens of other states. This may be inferred by California's acceptance of the Interstate and International Depositions and Discovery Act, but it is not explicitly stated in the Comment.

Dispute

Governing Law

“If a dispute arises relating to the subpoena, any party may petition the superior court where the discovery is to be conducted for a protective order or an order enforcing, quashing, or modifying the subpoena.” (Digital Music News, supra, 226 Cal.App.4th at p. 223, citing Code Civ. Proc., § 2029.600.) Although a party proceeds by filing a petition under Code of Civil Procedure section 2029.600, the resolution of the merits of the dispute “is nevertheless governed by California’s Civil Discovery Act, section 2016.010 et seq.” (Digital Music News, supra, 226 Cal.App.4th at pp. 223–24, (citing Code Civ. Proc., § 2029.500).)

Jurisdiction of a California Court

A California court has the jurisdiction and authority to quash, and issue a protective order, as to deposition notices and attendant requests for production of documents that were commissioned by a California court but actually issued by other states where the depositions would take place. Section 2029.60 states that such motions "may" be filed in the superior court in the county in which the discovery is to be conducted and "if so filed" shall comply with the applicable rules or statutes of this state. The language is permissive or discretionary, and not mandatory. (Parks v. Superior Court (1971) 19 Cal. App. 3d 188, 191.)

The Law Revision Commission Comments following Section 2029.600 make clear that the statute was intended to protect the rights and interests of California citizens, the subjects of discovery, where the discovery occurs in California, but the action is filed out of state.

Example of Application of Jurisdiction

The design of Section 2029.600 is exemplified by Digital Music News LLC. v. Escape Media Group, LLC (real party in interest), where the underlying lawsuit was filed in New York and involved allegations that the Defendant internet music provider stole music from the Plaintiff music company. (Digital Music News LLC. v. Escape Media Group, LLC (real party in interest) (2014) 226 Cal. App. 4th 216.) The subject of the discovery was not a party and not in New York, but a California Internet Media company that published a comment about the controversy from an anonymous "inside" source corroborating Plaintiff's core allegations. Defendant sought and obtained a subpoena from the California Court under Code of Civil Procedure Section 2029 requiring the California Media Company to reveal the identity of the person making the comment. The Media Company both opposed the subpoena in the California Court and appealed the issuing of the subpoena on various First Amendment and privacy grounds to the California Appellate Court. The statute enabled the California Court to provide protection to its citizen, the California subject of discovery. And it was the California real party in interest, the target of the subpoena, who independently availed itself of the protections of Section 2029 by opposing the subpoena all the way through the appellate court process. There is no mention that the New York Plaintiff was involved in the controversy whatsoever.

Related Laws

California Rules of Court

• California Rules of Court, Rule 3.1010(a) allows a party to take an oral deposition by phone provided that notice served with the notice of deposition indicates that the deposition will be by phone and the party makes all arrangements for others to participate in the deposition in an equivalent manner. Any party may also appear personally without giving prior notice.

Code of Civil Procedure

• The court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc. § 1987.1.)
• Code of Civil Procedure § 2025.22(a)(5) expressly mandates that a subpoena shall notify the deponent of any intention to videotape the deposition.
• Code of Civil Procedure § 1987.3 provides that a subpoena duces tecum may served upon by the custodian of records or another qualified witness as provided in evidence code section 1560 even if the witness is not a resident of the state at the time of service. (Code Civ. Proc. § 1987.3.) However, this section does not excuse compliance with Code of Civil Procedure § 2026.010. Rather, Evidence Code § 1560 explicitly notes that a subpoena served upon the custodian of records in which the business is neither a party not the place where any cause of action is alleged to have arisen should comply with Code of Civil Procedure § 2026.010. (Evid. Code § 1560.)
• Code of Civil Procedure § 2026.010 governs the taking of discovery in another state in an action filed in California.