Testimony in Support of Senate Bill 171
Presented by Eric Johnson, Esq.
Before the Senate Civil Justice Committee
January 27, 2016
Proposal to Adopt the Uniform Interstate Deposition And Discovery Act in Ohio
Chairman Bacon, Vice-Chair Oelslager, ranking member Skindell and members of the Senate
Civil Justice Committee:
Thank you for allowing me to present proponent testimony on Senate Bill 171. I am Eric
Johnson, a domestic relations attorney in Columbus and a member of the OSBA Family Law
Committee.
This bill uses the Uniform Interstate Deposition and Discovery Act to provide simple procedures
for courts in one state to issue subpoenas for out-of-state depositions. The Act sets forth clear
rules for governing discovery by decreeing that any discovery permitted must comply with the
laws of the discovery state.
Prior Acts
Ohio’s version of the “Uniform Foreign Depositions Act” (UFDA) dates back to 1920, and was
adopted as part of the General Code. It remained unchanged when the Ohio Revised Code was
adopted in 1953, and remains so today. It reads:
2319.09 Uniform foreign depositions.
Whenever any mandate, writ, or commission is issued out of any court of record in any
other state, territory, district, or foreign jurisdiction, or whenever upon notice or
agreement it is required to take the testimony of a witness in this state, witnesses may be
compelled to appear and testify in the same manner and by the same process and
proceedings as are employed for the purpose of taking testimony in proceedings pending
in this state.
This section shall be so interpreted and construed as to effectuate its general purpose to
make the law of this state uniform with those states which enact similar legislation.
Like most states, Ohio did not adopt the later 1962 proposal, the “Uniform Interstate and
International Procedure Act” (UIIPA), that was more extensive than the UFDA, which provided
provisions on personal jurisdiction, service methods, deposition methods, and other topics. The
UIIPA expressly applied to “testimony or documents or other things” whereas the UFDA (the
older act adopted by Ohio) expressly applies only to the “testimony” of witnesses.
The UFDA provides that the witness “may be compelled to appear and testify in the same
manner and by the same process and proceeding as may be employed for the purpose of taking
testimony in proceedings pending in this state.”
Under the UFDA, a party must file the same notice of deposition that would be used in the trial
state and then serve the witness with a subpoena under the law of the trial state. Other states
required that a notice of deposition be shown to a clerk or judge in the discovery state, after
which a subpoena will automatically issue. Still other states required a letter rogatory requesting
the trial state to issue a subpoena. About 20 states required an attorney in the discovery state to
file a miscellaneous action to establish jurisdiction over the witness so that the witness can then
be subpoenaed.
Both the UFDA (and the UIIPA) were silent on where the deposition may take place.
As you can see, the current system leaves a lot of unanswered questions for those involved in the
litigation process.
The Uniform Interstate Deposition and Discovery Act (UIDDA)
The Uniform Commissioners drafted the UIDDA recognizing a “uniform act needs to set forth a
procedure that can be easily and efficiently followed, that has a minimum of judicial oversight
and intervention, that is cost-effective for the litigants, and is fair to the deponents.” They
patterned the Act after Rule 45 of the FRCP, which is universally admired by civil litigators for
its simplicity and efficiency.
The UIDDA addresses the need for an efficient and inexpensive procedure that would allow
litigants to depose individuals and conduct discovery in a state other than the trial state. The Act
improves current state procedures in the following ways:

Procedural Efficiency: The clerk of court in the discovery state acts in a purely
ministerial role, but in a manner that is sufficient to invoke jurisdiction of the discovery
state over the deponent. Under the Act, there is no need to present the matter to a judge
in the discovery state before a subpoena can be issued.

Cost Efficiency: The Act eliminates the need for out-of-state litigants to obtain a
commission or local counsel in the discovery state and file miscellaneous actions during
discovery in order to subpoena individuals located outside the trial state.

Protection of Non-Litigant Citizens: Discovery permitted by the Act must comply with
the laws of the discovery state. The UIDDA recognizes the discovery state has a
significant interest in protecting its residents who become non-party witnesses in an
action pending in a foreign jurisdiction from unreasonable or burdensome discovery
requests. Moreover, all motions to quash or modify a subpoena must comply with the law
of the discovery state.
The process for obtaining discovery under the Act is simple:
1.
An out-of-state party who wishes to take a deposition of, and/or obtain documents from,
an Ohioan files a copy of the subpoena filed in the other state with the Ohio clerk of court
where the deponent resides (or is employed or regularly transacts business), with the
applicable fees.
2.
The Ohio clerk issues the subpoena just as if it were an Ohio subpoena. The clerk’s act
of reissuing the subpoena sufficiently establishes jurisdiction over the person served. The
terms of the subpoena being issued must include the same terms as the original subpoena
as well as all contact information for all counsel of record and any party not represented
by counsel.
Similarly, an Ohio litigant wishing to obtain discovery from an out-of-state party may use
the same simple process in any state where the Act has been adopted.
Since the national Conference of Commissioners on Uniform State Laws recommended the
UIDDA in 2007, thirty-six states, the District of Columbia, and the U.S. Virgin Islands have
adopted the statute. Every state contiguous to Ohio, with the exception of West Virginia, has
already adopted the Act and West Virginia introduced its legislation to do so on January 13,
2016. Adoption of the Act in Ohio would therefore especially ease the burden on Ohio attorneys
practicing in counties close to state lines.
To bring much needed clarity to the litigation process, the Ohio State Bar Association asks that
the bill be favorably referred.
I am available to answer questions.
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