This Week’s Blog by Sarah E. Murray
- A deposition of an out-of-state witness usually requires an Order from the Court
- Once ordered in Connecticut, further litigation regarding the deposition can occur in the state where the witness lives
- The deposition of the out-of-state witness will take place in the state where the witness resides, unless otherwise agreed
Can I Take the Deposition of an Out-of-State Witness for Use in My Connecticut Divorce Case?
Clients in Greenwich, Darien, and New Canaan sometimes have reason to want the sworn testimony of a witness who does not live in Connecticut. It is common for Fairfield County divorce clients to have contacts out-of-state, particularly in New York, who may be able to provide sworn testimony related to the divorce case. The reasons for needing the deposition testimony of out-of-state witnesses vary, and can include needing the testimony of an opposing party’s out-of-state employer, or a paramour, in order to obtain relevant information or to bolster one’s case.
If a divorce client and his or her attorney decide that the deposition of an out-of-state witness is needed, the next step is to determine the method by which that witness can be compelled to appear for a deposition in the case. Pursuant to the Connecticut rules, unless a witness agrees to appear at a deposition, that person can only be compelled to sit for a deposition if he or she is served with a valid subpoena. If the client knows that the out-of-state witness is going to be in Connecticut on a particular day, it may be possible to arrange to have that person served in Connecticut with a subpoena for a deposition. If the witness is served with a subpoena while in Connecticut, then he or she is compelled to appear for a deposition within the county in Connecticut in which he or she is served.
If the witness is not able to be served with a subpoena in Connecticut, then the appropriate procedure is for an Application for Commission to take the deposition of an out-of-state resident to be filed in the Connecticut Court. The Application for Commission is a motion requesting an Order from the Connecticut Court that gives the party permission to depose the out-of-state witness in the state where that witness resides. Top Fairfield County attorneys will consult with an attorney in the state in which the witness resides prior to filing the Application for Commission in order to ensure that the Connecticut Order authorizing the deposition complies with the laws and procedures of the state in which the deposition is to take place.
Once filed, if the opposing party does not agree that the Application for Commission be granted as a matter of course, a judge in Connecticut will decide whether or not to grant it in accordance with Connecticut’s discovery rules. Assuming that it does get granted in Connecticut, the process does not end there. The witness must then be served with a subpoena in accordance with the laws and procedures of the state in which he or she is to be served, i.e., his or her state of residence. Some states allow a subpoena to be served on the witness, while others require that the subpoena (and sometimes an accompanying motion) be filed in that state’s court prior to being served. It is critical to follow the law of the state in which the witness is to be served so that the witness cannot claim he or she was served improperly.
What Happens Once the Witness is Served?
Once the witness is properly served, that witness can challenge the subpoena in the courts of the state in which he or she is served. At Broder & Orland LLC, we find it important to have local counsel involved when serving an out-of-state witness in order to assist with any litigation that may occur in that state. Local counsel can also assist in the event that the witness fails to appear for the deposition and a motion to compel his or her attendance is needed.
After the subpoena is issued and any litigation initiated by the third party witness is complete, the deposition can occur. In some circumstances, counsel may agree to have the deposition take place in Connecticut to save the time and expense of the parties and counsel traveling to the other state for the deposition. If there is no agreement for that to occur, then the deposition must take place out-of-state. That deposition testimony can then be used as part of the Connecticut divorce proceedings. Under Connecticut Practice Book rules, the deposition testimony can also be used in some circumstances in lieu of that witness’ testimony at trial.
At Broder & Orland LLC, we have experience in arguing for (and sometimes against) Applications for Commission to take the depositions of out-of-state witnesses, and we understand the strategic considerations that clients should take into account in deciding when and how to pursue the deposition of an out-of-state witness.