Hi everyone,
I have a question about depositions that are commenced in a foreign
state. My case is pending in a California court, and I need to depose
a company out-of-state in order to get business records and
foundational testimony on record to admit the records into evidence.
Obviously, the company will want a subpoena that is valid in their
state before complying.
I have asked the clerk in two different states the requirements.
Though they are not exact, the requirements for the most part are the
same. Here are the requirements in Florida:
- Order Appointing Commissioner (process server)
- Certified copy of the Notice of Taking Deposition or Letter of Rogatory
- An Out of State Subpoena with the deponents name and address for the
Clerk's signature only (original and copy)
- $1.50 fee per subpoena
I have several books on taking depositions, however, all of the
documentation I find online, and in the books, doesn't cover the
process of arranging for depositions out-of-state.
I DO understand though that in Cali, I can file an ex-parte motion for
an Order Appointing Commissioner. Or the clerk, is the foreign state
will accept it, can prepare one directly per request.
HOWEVER, I can't really find any documentation or a clear explanation
as to what a "commission" is.
Also, I am a little confused about the "certified" Notice of
Deposition part as well. I saw several states have this requirement.
If a Notice of Deposition is to be sent out of leave of court, what
makes it certified? Do they want it stamped with a seal from the
court?
My questions are:
1. What is a "Letter of Commission"? Whom is supposed to be designated
as having the commission? Are there any useful examples of motions
requesting a Commission online?
2. What makes a court document "Certified"?
Since this is a process I understand is required in multiple states, I
hope it will be easy to answer.
Thank you,
Alan |
Clarification of Question by
coderoyal-ga
on
04 Jul 2006 19:32 PDT
Sorry.. not "Letter of Commission". I should ask what a Commission, in
the context of the above question is?
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Request for Question Clarification by
hagan-ga
on
05 Jul 2006 08:43 PDT
Coderoyal, I have encountered this issue many times in my practice.
All but one time, it was resolved by stipulation. Is a stipulation
out of the question in your case?
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Clarification of Question by
coderoyal-ga
on
11 Jul 2006 20:24 PDT
Hagan-ga!
I apologize about my late response. I'm afraid the defendant has
actually decided to not participate at all in the case, and hasn't
even filed an answer. I'm just attempting to build evidence for a
default judgement hearing, yet to be scheduled. The defendant will not
stipulate to anything.
As an update, I've changed my strategy and have sent a set of
admissions. I am going to wait for his time to expire, and seek to
have the documents deemed admitted.
However, because there's so little information online about this
topic, and I'll likely need to know it in the future, I'd still be
interested in an answer if you can provide it.
Thank you!
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Clarification of Question by
coderoyal-ga
on
12 Jul 2006 20:57 PDT
Hi again,
I was going through some of your past answers on Google Answers and I
saw your answer about a person being sued and their requirement to
file an answer.
I saw you mentioned that if you don't answer a part of the complaint,
that it would be considered ADMITTED. Does this apply to complaints
where NO answer is filed? If so, I have a lot of evidence, though that
would normally be inadmissible because I don't have foundational
testimony, that I would like to use for the default hearing.
Can I do this instead?
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Request for Question Clarification by
hagan-ga
on
13 Jul 2006 07:50 PDT
Hello again!
Wow, Coderoyal, this is now a very different situation -- and believe
it or not, even more complicated than the original question. You are
in California, which is the jurisdiction I'm most familiar with, so I
believe I'll be able to help you. Let me see if I understand.
You have brought suit in a California court against a company outside
of California. The company is in default and has not filed an answer.
You are preparing for a hearing on a default judgment (commonly
called a "prove-up" hearing). Correct?
Have you actually taken the company's default at this point -- filed
and served a Request for Entry of Default? If you haven't, you need
to.
Now, a few more questions:
Is this a contract case, or something similar? Or is it a
personal-injury type case?
Is there an amount of damages stated in the complaint itself? If not,
have you served a Statement of Damages on the defendant?
Once we have that information squared away, I'll be able to tell you
what to do next.
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Clarification of Question by
coderoyal-ga
on
13 Jul 2006 09:49 PDT
Hi Hagan,
The defendant is in California. He is an individual. The case is
actually regarding cyber piracy. (CBPC 17525) A default has been
served via first class mail (still in-route to Cali.) A default was
mailed to the Clerk as well, and should be arriving probably Monday.
So technically, it's not filed yet, but will be shortly.
The company at the time, I wanted to issue a deposition subpoena, was
in Florida (they later said they'll comply with a Cali. Subpoena,
ending my need for a commission.. etc). I will also need to have
evidence to show the Defendant owns the domain name, so I intend to
subpoena Godaddy.
At this point, it's looking like the circumstances have changed and I
don't need to seek getting a commission anymore.
I have a lot of evidence online showing the Defendant is trying to
sell the domain name on afternic.com. Also, letters from him offering
to sell it to several people. Plus, WHOIS records from godaddy.com
showing his address.
Interesting, he recently changed the WHOIS record to a fake address
(see the whois for haileyannenelson.com). But I have the original
copy.
My NEW question is, because of the new circumstances is, when a
default is filed. Does this mean that for the purposes of seeking a
default judgement, that my claim is deemed ADMITTED? What impact does
this have on the rules of evidence? With the facts presumed ADMITTED
(if it is), Can I just submit my evidence for the default hearing (I
haven't filed for Default Judgement just yet, just a Default) as is,
without the foundational testimony (affidavit) normally required for
business records to be used as evidence?
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Clarification of Question by
coderoyal-ga
on
13 Jul 2006 15:31 PDT
Hi Hagan,
Because the nature of the question has changed significantly, I have
decided to close this question and repost my revised question under
this category.
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