Subpoenas Can Bring the Out-of-State Party to Trial
By Mickey P. Landry and Matthew C. Clark
Can a Louisiana court compel a non-resident party to testify at trial? Yes, concluded the Louisiana Fourth Circuit Court of Appeal in a recent asbestos-disease case. “In the same way that Louisiana exercises personal jurisdiction over parties participating in litigation in the state, those parties may, upon the discretion of the court, be compelled to appear in Louisiana for discovery, depositions, hearings, and/or trial.” Hayden v. 3M Co., 16-1030 (La. App. 4 Cir. 2/3/2017), 211 So. 3d 528, 532. “Out of fundamental fairness,” however, “the court must consider . . . travel costs, complexity of the case, the potential recovery, and whether other methods of discovery have been attempted.” Id.
In Hayden, out-of-state corporate defendants responded to plaintiffs’ trial subpoenas with motions to quash. They argued the subpoena power does not include the power to compel a non-resident defendant to appear at trial. The district court agreed. Plaintiffs applied to the Fourth Circuit for supervisory review, which denied relief. But the Louisiana Supreme Court granted supervisory review and remanded the case to the Fourth Circuit “for briefing, argument and full opinion.” See Hayden v. 3M Co., 16--1986 (La. 12/16/2016).
In the Fourth Circuit, defendants argued that codal law and Cattle Farms, Inc. v. Abercrombie, 146 So. 2d 689 (La. 1962), exempt non-resident parties from being compelled to appear in Louisiana for trial. The codal aspect of the argument rested on article 1352 of the Louisiana Code of Civil Procedure, which provides, in pertinent part:
A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend trial or hearing wherever held in this state. No subpoena shall issue to compel the attendance of such a witness who resides and is employed outside the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held. . . .
La. Code Civ. Proc. Ann. art. 1352. Defendants cited Cattle Farms for the proposition that an adverse party residing in another state and not employed in Louisiana could not be compelled to attend trial in Louisiana.
The Fourth Circuit stated that Louisiana “jurisprudence has been consistent with respect to the state’s having subpoena power over nonresident plaintiffs,” citing:
As these cases post-date Cattle Farms, the Fourth Circuit detected a trend away from Cattle Farms and reasoned that courts have treated parties differently from witnesses in the subpoena context.
The defendants argued that Hohner, Broda, O’Rorke and Transworld are not dispositive because their applicability is limited to non-resident plaintiffs. The Fourth Circuit disagreed.
Hayden provides the complex litigator with many things: an opinion that non-resident parties can be compelled to appear at trial and that the parties are treated differently from witnesses in the subpoena context; a collection of significant jurisprudence regarding the court’s subpoena power; and the factors district courts should use to determine whether a party should reasonably be compelled to appear at trial.
*Mickey P. Landry and Matthew C. Clark of Landry & Swarr, LLC. Landry & Swarr served as counsel to the plaintiffs in Hayden.