Discovery is the process of two sides sharing evidence with one another prior to a trial or other legal proceeding. Both sides need to know what the other intends to argue to prepare their cases adequately.
For an out-of-state court to conduct discovery in Massachusetts is a bit more complicated. According to the North Carolina Office of Indigent Defense Services, Massachusetts is one of a handful of states that has not enacted the Uniform Interstate Depositions and Discovery Act. Therefore, it requires a unique process for out-of-state attorneys to collect depositions and conduct other discovery tasks.
1. Notification of parties in the case
An out-of-state attorney can send notifications to parties that he or she wants to depose. He or she can follow the rules of the state where the proceedings are to take place when making the notification.
2. Issuance of Letters Rogatory
Because Massachusetts has not enacted the UIDDA, out-of-state courts wishing to request judicial assistance have to submit a letter rogatory to a Massachusetts court. The American Bar Association suggests some elements that letters rogatory should contain:
- A statement about the purpose of the letter, i.e., requesting judicial assistance
- The nature of the assistance requested, e.g., subpoenaing a witness for a deposition
- Identifying information for the party involved, e.g., the witness’ name and address
- The type of case, e.g., civil or criminal, plus a brief synopsis of it
A letter rogatory should not use typical UIDDA language but reflect the requirements in Massachusetts.
3. Opening of a case
The next step in the process is formally opening a case. This requires the assistance of a Massachusetts-based attorney to file the necessary affidavits and applications.
Upon completion of these steps, a Massachusetts court can issue the order allowing the out-of-state attorney to serve the witness with a subpoena and take the deposition.