Allegheny County Foreign Subpoena Procedure: A Miscellaneous What?

April 1, 2020
By Lydia Gorba
Posted in Litigation

Envision this scenario: a civil action is filed in Delaware [the foreign action]. The plaintiff in the foreign action wants to subpoena documents from an entity located in Allegheny County, Pennsylvania. The Delaware court issues a Delaware subpoena [the foreign subpoena] directed to the Pennsylvania entity for said documents. But wait – the Delaware court doesn’t have jurisdiction over the Pennsylvania entity, which means that you have to obtain and serve an Allegheny County, Pennsylvania subpoena [the local subpoena]. But how?

Like most other states, Pennsylvania – and Delaware – have adopted the Uniform Interstate Depositions and Discovery Act (“the Act”), which governs the procedure for issuance of a local subpoena for use in a foreign action. The Act states in relevant part:

§5335. Issuance of subpoena.

  1. General rule.–To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a prothonotary in the jurisdiction in which the person who is the subject of the order resides, is employed or regularly transacts business in person. A request for the issuance of a subpoena under this subchapter does not constitute an appearance in the courts of this Commonwealth.
  2. Duty of prothonotary.–A prothonotary in receipt of a foreign subpoena shall, in accordance with that court’s procedure, promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.[1]

42 Pa.C.S. § 5335.

Prior to the adoption of the Act, Allegheny County required the filing of a Miscellaneous Petition for Leave to Serve Subpoena for Use in a Tribunal Outside the Commonwealth pursuant to 42 Pa.C.S. § 5326 – the Act’s predecessor. The process was cumbersome.  Allegheny County required a local docket number and a presentation of a Motion for Leave to Serve Subpoena for Use in a Tribunal Outside the Commonwealth. The Motion was subject to the Allegheny County ten (10) day notice requirement for the presentation of motions. Additionally, because of the presentation aspect, out-of-state counsel had little choice but to seek the help of local counsel in carrying out this process.

Now let’s jump to the present – post-Act. One of the main purposes of the Act was to simplify the process and eliminate the need for local counsel. Let’s look back at the above-cited language: the requesting party must simply take the foreign subpoena, along with a draft local subpoena, to the Prothonotary who then issues the local subpoena to be served in accordance with local procedures.[2] While the language of the statute may seem clear, the process is not so clear.

Unlike other Pennsylvania counties, in Allegheny County, you purchase subpoenas, and you don’t typically have to request issuance. It follows that you’d just fill out the local subpoena that you probably already have at your office and serve it, along with a copy of the foreign subpoena. But that is not the case; you still have to file the petition in order to obtain a docket number. This docket number – not the foreign action docket number – will go on the local subpoena when it’s time to serve. Thankfully, Allegheny County has done away with the motions practice aspect.

In summary, here’s the process in Allegheny County: draft the petition – it can be brief; attach the original foreign subpoena and a draft local subpoena – identical to the foreign one except for the blank docket number; obtain your docket number; pay the filing fee; and you are on your way. Service in accordance with local procedures is another topic entirely.

If you have a question about the service of foreign subpoenas or any litigation matters, please contact Lydia Gorba at lgorba@smgglaw.com or any of SMGG’s Litigation Practice Group attorneys or call us at (412) 281-5423.

[1] Note that the Act also describes in detail what must be included in the subpoena: “(c) Contents of subpoena.–A subpoena under subsection (b) must: (1) Incorporate the terms used in the foreign subpoena. (2)  Contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.” 42 Pa.C.S. § 5335.

[2] Note that service is to be made in accordance with the local procedures, as if it were not for use in a foreign action. “§ 5336.  Pennsylvania rules applicable. The Pennsylvania Rules of Civil Procedure and any statutes relating to service of subpoenas and compliance with subpoenas shall apply to all subpoenas issued under this subchapter. Such rules shall include, but are not limited to, the following: No. 4009.21 (relating to Subpoena Upon a Person Not a Party for Production of Documents and Things. Prior Notice. Objections). No. 4009.22 (relating to Service of Subpoena). No. 4009.23 (relating to Certificate of Compliance By a Person Not a Party. Notice of Documents or Things Received). No. 4009.24 (relating to Notice of Intent to Serve Subpoena. Objection to Subpoena. Forms). No. 4009.25 (relating to Certificate Prerequisite to Service of Subpoena. Form). No. 4009.26 (relating to Subpoena to Produce Documents or Things. Form). No. 4009.27 (relating to Certificate of Compliance. Form).” 42 Pa.C.S. § 5336.