Imagine this scenario: A Bank issues a loan to two co-borrowers. One co-borrower relocates to Massachusetts. The co-borrowers default on the loan and the Bank commences suit against the two co-borrowers. During litigation, the Connecticut co-borrower raises defenses or counterclaims against the Bank. The Bank desires to take the deposition of the Massachusetts co-borrower to gather information to combat these defenses and claims and/or to learn information about the foreign co-borrower. It may be possible to take the Massachusetts co-borrower’s deposition in Connecticut if you can successfully serve him or her while they are located in Connecticut. It is also possible to notice the deposition in Massachusetts, but without a subpoena they may choose not to appear at the deposition. What can the Bank do when the out-of-state borrower fails or refuses to appear?
A Connecticut subpoena to appear for deposition loses its power at the Massachusetts-Connecticut border.
However, Massachusetts General Laws ch. 223A, § 11 and ch. 233, § 45 provide that a Massachusetts court can order a Mass. resident to give testimony or produce documents for use in an out-of-state proceeding. In order to utilize these statutes and secure the deposition of a Massachusetts resident, certain steps should be taken:
- First, the Bank should file a motion in the Connecticut action for a commission to take the deposition of the out of state deponent. The Bank should also notice the deposition of the out of state deponent.
- Once this motion is granted, the Bank should file an Application in Massachusetts court for an order to take the deposition. This Application should attach a copy of the Connecticut order granting the commission, a copy of the notice of deposition, and a draft Massachusetts subpoena. The Application should also explain why the testimony is necessary for the Connecticut case.
- Provided the Application is granted, the Bank will have to serve the subpoena upon the deponent in accordance with applicable Massachusetts rules. After service of the subpoena, the deponent is required to appear.
- Should the deponent fail to appear as required, the Bank is not without further options and can petition the Massachusetts Court for an Order to compel subpoena compliance under Mass. R. Civ. P. 37. The Bank could also consider instituting contempt proceedings, though this is a more complicated process.
Of course, it is important to note that the different states have different processes for achieving this result, but a Bank that needs a deposition or documents from a foreign individual or corporate entity should have the ability to do so if the Bank follows the correct procedure in that state.