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Obtaining third party testimony in Massachusetts

| May 10, 2021 | Firm News |

When an attorney needs to subpoena a third party to give a deposition about information in a case, it is generally a straightforward process if the party is in the state where the case is taking place, or if the party is willing to provide testimony voluntarily.

However, if the matter requires the attorney to subpoena a witness for a deposition in a different state, things may be different.

Irregular processes

Obtaining out-of-state testimony can be complex because states have their own laws. Many states have adopted variations on a uniform procedure that streamlines the processes. Massachusetts law instead complicates things by having its own rules and procedures regarding how people can obtain testimony from those within the commonwealth.

Letter rogatory

To subpoena a third party from a jurisdiction outside of the commonwealth, Massachusetts courts require a letter rogatory — a formal written request. This comes from the court in the jurisdiction where the legal matter is taking place to the court that has jurisdiction over the person or entity from whom the parties are seeking the deposition.

Procedural order

The court issues an order for the deposition that may include the rules for the discovery using the procedures in Massachusetts, in the original jurisdiction, or a combination of the two. If the order does not say, then the procedure defaults to that of the court of jurisdiction. The party seeking the discovery often has local counsel subpoena the third party and take the deposition due to the convenience of being at the location and the advantage of familiarity with state rules and regulations.