Almost everyone knows about the trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Many people also know about a key piece of evidence introduced by the defense—taped interviews in which one of the investigating officers, Los Angeles Police Department detective Mark Fuhrman, used racial slurs. Less well known is the legal mechanism that the defense team used to obtain the tapes, which were in the possession of a North Carolina writer who refused to turn them over voluntarily. How did O.J.’s lawyers compel a resident of North Carolina to produce the tapes in faraway Los Angeles, California? This post reviews the procedure used in the O.J. case and other ways to obtain out-of-state materials in a criminal case.
What Doesn’t Work
Let’s look first at what doesn’t work. An ordinary North Carolina subpoena does not obligate a person in another state to produce records in a North Carolina case. The United States Supreme Court held long ago, in the 1902 case of Minder v. Georgia, 183 U.S. 559, 562 (1902), that a state court does not have the power “to compel the attendance of witnesses who are beyond the limits of the state.” So, in the O.J. case, the defense team could not have used and did not use an ordinary California subpoena to compel production of the Fuhrman tapes.
The North Carolina State Bar has stated further that it is unethical for a North Carolina attorney to mislead an out-of-state entity that an ordinary North Carolina subpoena obligates the recipient to comply. See Obtaining Medical Records from Out of State Health Care Providers, 2010 Formal Ethics Opinion 2 (2010). The opinion addresses subpoenas for medical records to out-of-state health care providers, but the reasoning would seem to apply to subpoenas to other out-of-state entities. (A later State Bar opinion, discussed below, suggests an alternative approach.)
What Does Work, with Court Orders
Because of the limited range of state court subpoenas, the Uniform Law Commission adopted the Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings way back in 1936. Every state has enacted this interstate subpoena procedure, which is codified in North Carolina in G.S. 15A-811 through G.S. 15A-816. An attorney first must apply to a North Carolina court for an order for production of the desired records. The attorney then must take the order to the state trial court where the record holder is located and move for an order compelling the person or entity to produce the records. The attorney must show that the records are material. Because the procedure requires a court appearance in another state, the attorney must engage local counsel to move for the order in the other state or obtain permission to appear pro hac vice in the other state’s courts. For a further discussion of the requirements, see Julie Lewis & John Rubin, 2 North Carolina Defender Manual § 29.1E (2d ed. 2012).
The above procedure was the one used in the O.J. case, resulting in a reported opinion bearing the writer’s name, In re McKinny, 462 S.E.2d 530 (N.C. App. 1995). When O.J.’s attorneys came to North Carolina with a California court order in hand and moved for a North Carolina order, the trial judge initially denied the request. The North Carolina Court of Appeals reversed, compelling the North Carolina writer to appear at O.J.’s trial in Los Angeles and produce and testify about the tapes.
The uniform act does not explicitly refer to a subpoena for documents. It refers to subpoenas, orders, and other notices requiring the appearance of a witness. Generally states have held, including North Carolina in the O.J. case, that the act provides a mechanism to obtain documents. See Jay M. Zitter, Annotation, Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena Duces Tecum, 7 A.L.R.4th 836.
What May Work, without Court Orders
The uniform interstate subpoena act is obviously cumbersome, requiring two court orders and an appearance in another state. Three simpler approaches may be possible.
An ordinary North Carolina subpoena if voluntary. Some entities may be willing to produce materials located outside North Carolina as long as they receive a subpoena, even an ordinary North Carolina subpoena. The North Carolina State Bar recognized this possibility in a later opinion, finding that an attorney may issue a North Carolina subpoena for out-of-state records as long as the attorney advises the out-of-state entity that production is voluntary. See Use of North Carolina Subpoena to Obtain Documents from Foreign Entity or Individual, 2014 Formal Ethics Opinion 7 (2014). An attorney should contact the entity ahead of time to determine whether it will produce the records voluntarily in response to a North Carolina subpoena.
An ordinary North Carolina subpoena if served on a registered agent of a foreign corporation. The issue posed in the above ethics opinion was the proper procedure to follow when an out-of-state corporation, commonly called a foreign corporation, does not have a registered agent for service of process in North Carolina. What if a foreign corporation has a registered agent here? Can an attorney compel a foreign corporation to produce records by serving the corporation’s registered agent? The State Bar opinion doesn’t specifically address the issue. Nor do there appear to be any North Carolina appellate decisions.
Some decisions from other states take the position that service of a subpoena on a registered agent is not sufficient to obligate a foreign corporation to comply. According to these decisions, service of process on a registered agent may obligate a foreign corporation to respond to a lawsuit against the corporation. But, the decisions distinguish being sued as a party from being subpoenaed to produce records in a proceeding in which the corporation is not a party. The decisions hold that doing business in a state and having a registered agent there does not necessarily obligate a corporation to produce records located outside the state. See, e.g., Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440 (Va. 2015); Ulloa v. CMI, Inc., 133 So. 3d 914 (Fla. 2013).
These decisions seem out of step with the current era of electronic storage and transmission of records. It is not clear where records are located when they are electronically accessible from just about anywhere. Further, the burden of electronically generating and producing records is considerably less than copying, packing up, and shipping off hard copies. See Yelp, 770 S.E.2d at 446 (dissenting and concurring opinion) (arguing that Virginia legislature provided for exercise of subpoena power over foreign corporation that had registered agent in Virginia but concluding that evidence failed to show that corporation had sufficient contacts with Virginia for court to exercise jurisdiction); CMI, Inc. v. Landrum, 64 So. 3d 693, 695 (Fla. Dist. Ct. App. 2010) (holding that service of subpoena duces tecum on registered agent of “foreign corporation authorized to do, registered to do, and doing business in Florida” was sufficient), disapproved by Ulloa v. CMI, above.
In most cases, attorneys are unlikely to encounter such fierce resistance over service on a registered agent. In the above cases, the corporations were keen to protect the information being sought: in Yelp, the identity of anonymous authors of negative reviews of the civil plaintiff’s business; in the CMI cases, the computer source codes for the intoxilyzer machine manufactured by CMI and used against the criminal defendant. Larger, national companies often have subpoena compliance departments, which handle subpoenas as routine matters and can advise attorneys where to send a subpoena, the cost of generating the records, and other logistics. Contact information for many companies is available here from the Forensic Resource Counsel of the Office of Indigent Defense Services.
A subpoena under the Uniform Interstate Deposition and Discovery Act (UIDDA). In 2007, the Uniform Law Commission adopted UIDDA, a simpler interstate procedure to obtain evidence. Most although not all states have adopted some version of UIDDA, codified in North Carolina in G.S. 1F-1 through 1F-7. Generally, an attorney issues a North Carolina subpoena identifying the records being sought and submits it to the appropriate clerk of court in the state where the records are located, called the foreign state, along with a completed but unexecuted subpoena from the foreign state. The clerk in the foreign state issues the foreign state subpoena, which the attorney serves on the recipient in accordance with the rules of that state. Under UIDDA, no appearance is required in the foreign state, by local counsel or by the North Carolina attorney appearing pro hac vice, and no hearing or action is required by a judge. The specifics may vary in different states, so attorneys should check the particular state’s law before proceeding.
Although the title of UIDDA refers to depositions, which is typically a civil discovery device, the provisions are not specifically limited to civil cases. North Carolina appears to allow parties in a criminal case to utilize UIDDA. In addition to enacting the provisions of the uniform act, North Carolina added subsection (f) to Rule 45 of the North Carolina Rules of Civil Procedure. See S.L. 2011-247. That subsection authorizes a party in a North Carolina case to obtain discovery from a person in another state, including production of documents, in accordance with the processes and procedures in the other state. With the exception of provisions not applicable here, G.S. 15A-802 makes Rule 45 applicable to criminal cases. Again, attorneys should review the UIDDA procedures of the other state, as some may exclude criminal cases. Compare N.D. R. Ct. 5.1(d) (“Depending on the type of case involved, the discovery rules contained in the North Dakota Rules of Civil Procedure, Criminal Procedure or Juvenile Procedure apply to subpoenas issued under Rule 5.1(b) [the rule implementing UIDDA].”) with Ga. Code Ann. § 24-13-112(e) (“This Code section [implementing UIDDA] shall not apply to criminal proceedings.”).
Unlike a court order issued under the earlier interstate act, a UIDDA subpoena does not compel the recipient to appear in North Carolina. Discovery takes place in the foreign state, not the trial state, and is governed by the laws of the foreign state. Whether the recipient of a UIDDA subpoena is obligated to take the less burdensome step of transmitting records to the subpoenaing party in North Carolina likewise appears to be governed by the laws of the foreign state. Cf. Estate of Klieman v. Palestinian Authority, 293 F.R.D. 235, 240–41 (D. D.C. 2013) (holding that although a subpoena under Rule 45 of the Federal Rules of Civil Procedure could not compel a foreign entity to appear for a deposition in a federal case, it could compel the entity to produce records). Attorneys should check with the out-of-state entity to determine how it wants to proceed. Sometimes an out-of-state entity may be willing to produce documents in response to an ordinary North Carolina subpoena; other times the entity may want the protection of a UIDDA subpoena from the court of the state in which the entity is located.
For a further discussion of UIDDA, where I first learned about this relatively new procedure, see Ann Tolliver, A Guide to Using the UIDDA, Forensic Science in N.C. Blog (Feb. 17, 2017).