Part XXX Subpoenas Subpoenas

• Jurisdiction: New York

Part XXX — Subpoenas

In the last issue, the Legal Writer discussed conditional disclosure orders, spoliation of evidence, and disclosure in special proceedings. In this issue and the next we’ll discuss subpoenas: how to comply with them, what you can do when someone doesn’t comply with them, and how to move to quash, modify, or fix their conditions.

Subpoenas: The Basics

A subpoena is a paper that requires a witness to give testimony or produce materials¹²¹⁰ in both judicial and quasi-judicial proceedings.¹²¹¹ A subpoena subjects the witness to penalties, including contempt, if the witness fails to comply.¹²¹²

CPLR Article 23 governs subpoenas. Subpoenas aren’t disclosure devices. They’re not covered by Article 31 of the CPLR, which governs disclosure and disclosure devices. Although not disclosure devices, subpoenas are useful tools to obtain documents and testimony from nonparties to the litigation. Nonparties are individuals or entities not part of the action or proceeding. Nonparties might have information that can help your case. The information might come from documents that the nonparty has or information that the nonparty might testify to during trial, or both.

Practitioners must know about three kinds of subpoenas: (1) subpoena ad testificandum; (2) subpoena duces tecum; and (3) information subpoena.

You might come across such terms as a pre-trial subpoena, trial subpoena, judicial subpoena, and non-judicial subpoena. They’re all variations of a subpoena ad testificandum and a subpoena duces tecum. Pre-trial and trial subpoenas are issued, respectively, before trial or for trial; subpoenas duces tecum and subpoenas ad testificandum can be used pre-trial and for trial. A court, court clerk, or officer of the court may issue judicial subpoenas. Many persons, explained below, may issue non-judicial subpoenas;¹²¹³ judicial and non-judicial persons may issue subpoenas duces tecum and subpoenas ad testificandum.

Practitioners should also know about deposition subpoenas, discussed below.

Unless otherwise noted, the Legal Writer will use the word “subpoena” to refer interchangeably to both a subpoena ad testificandum and a subpoena duces tecum.

Leave of Court

Many persons may issue a subpoena: arbitrators, clerks of the courts, judges, referees, and members of a board or a commission “empowered to hear or determine a matter requiring the taking of proof.”¹²¹⁴ An attorney of record to any party to any action, a special or an administrative proceeding, or arbitration may also issue a subpoena.¹²¹⁵

The attorney general may issue a subpoena without a court order.¹²¹⁶

If a person disobeys a subpoena, the contempt remedy exists irrespective of who issued the subpoena.¹²¹⁷

Most of the time, you won’t need a court order to issue a subpoena. But if you need a prisoner to testify, you’ll need to obtain leave of court.¹²¹⁸ You’ll also need a court order if you’re subpoenaing a patient’s clinical records under Mental Hygiene Law § 33.13.¹²¹⁹ You’ll further need a court order to subpoena an original record or document for which a certified transcript or copy is admissible in evidence.¹²²⁰ If you're seeking personal information in a public agency's possession, you'll need a court order for that, too.¹²²¹

You’ll need to move on notice if you’re seeking to subpoena documents — a subpoena duces tecum — from a library, department, or bureau of a municipal corporation or from a state or an officer of the state.¹²²² Serve your motion on at least one day’s notice on the library, department, bureau, state, or officer having custody of the documents.¹²²³

A pro se litigant, often called a self- or unrepresented litigant, may not issue a subpoena.¹²²⁴ Pro se litigants must obtain a court order.

Parties to a case don’t need a court order if they’re seeking documents or other things (including films, photographs, tapes, and physical property) from one another. Sending a notice to produce (also known as a document request) to your adversary will suffice.¹²²⁵

Subpoena ad Testificandum

Use a subpoena ad testificandum to secure testimony from a witness, including a hostile witness. Most witnesses will appear voluntarily; no need exists for you to serve a subpoena on them.¹²²⁶ But some witnesses, like government employees, will ask you to serve a subpoena to ensure that their employers will give them time off from work to testify. Serving a subpoena will also protect these witnesses from accusations of favoritism.

Subpoena Duces Tecum

Use a subpoena duces tecum to obtain “a paper or thing rather than testimony” from a witness.¹²²⁷ A subpoena duces tecum will allow you to inspect, copy, test, and photograph the items you seek.¹²²⁸

If you want a witness to testify and to produce documents in court, serve a subpoena ad testificandum and a subpoena duces tecum. Or serve one subpoena that contains both clauses — testimonial and duces tecum clauses.¹²²⁹ CPLR 2305(b) provides that you may join a subpoena duces tecum with a subpoena to testify “at a trial, hearing or examination or [the subpoenas] may be issued separately.”

Information Subpoena

Use an information subpoena to enforce a money judgment you’ve obtained after a trial or an inquest. CPLR 5224(a)(3) discusses information subpoenas.

As a judgment creditor, you may seek disclosure by serving an information subpoena on a judgment debtor: the person or entity against whom you’ve obtained a money judgment.¹²³⁰ In the subpoena, identify the parties to the action, the judgment date, the court in which you entered the judgment, the judgment amount, and the amount due on the judgment.¹²³¹ Also state that “false swearing or failure to comply with the subpoena is punishable as a contempt of court.”¹²³²

Prepare a set of interrogatories — questions — to get financial information about the judgment debtor to collect on the money judgment. You may serve the subpoena and interrogatories by registered or certified mail, return receipt requested, on the person or entity you’ve obtained a judgment from.¹²³³ Along with the information subpoena, mail to the judgment debtor an original and one copy of the written questions and a self-addressed, stamped envelope.¹²³⁴

The legislature amended CPLR 5224(a)(3) to require a certification in an information subpoena.¹²³⁵ When judgment creditors or their attorneys sign the certification, they “certif[y] that, to the best of . . . [their] knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that the individual or entity receiving the subpoena has relevant information about the debtor.”¹²³⁶

The judgment debtor responds to the interrogatories in writing and under oath. The judgment debtor must return its responses together with the interrogatories within seven days after receipt.¹²³⁷ The judgment debtor may mail the interrogatories and responses back to you.

Deposition Subpoena

A deposition subpoena requires a nonparty to appear for an examination before trial (EBT) at a designated time and place. Practitioners use the term “deposition” in federal court and the acronym “EBT” in state court, but they use “deposition subpoena,” consistent with the CPLR, to refer to an examination conducted before trial of a witness subject to a subpoena.

The examination may be “on oral or written questions.”¹²³⁸ Serve the deposition subpoena using the same methods as serving a summons.¹²³⁹ Consult CPLR 308(2) and 308(4) for exceptions.¹²⁴⁰ Serve a deposition subpoena at least 20 days before the examination, unless a court orders otherwise.¹²⁴¹

Serve a deposition subpoena on (1) the person you're subpoenaing; (2) a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person you're subpoenaing; or (3) the designated agent for service of the person being subpoenaed.¹²⁴²

Under CPLR 3102(c), you'll need a court order if want to serve a deposition subpoena on a nonparty before an action is commenced.¹²⁴³

Give at least 10 days’ notice of the deposition, unless you’ve obtained a court order giving less notice to a deponent.¹²⁴⁴ An authorized person conducts the EBT deposition during business hours.¹²⁴⁵ On consent, the deposition may take place anywhere in the state before any officer authorized to administer oaths.¹²⁴⁶

Before the legislature amended CPLR 3120 on September 1, 2003, a distinction existed between obtaining documents from parties and nonparties.¹²⁴⁷ A party had to obtain a court order to obtain documents from nonparties.¹²⁴⁸ Since the amendment, a party may request any document from a nonparty — in a...