Part XXXI Subpoenas Continued Subpoenas Continued

• Jurisdiction: New York

Part XXXI — Subpoenas Continued

In the last issue, the Legal Writer discussed the basics of subpoenas, including the form and substance of subpoenas ad testificandum, subpoenas duces tecum, information subpoenas, deposition subpoenas, and the fees associated with subpoenas. We continue our discussion of subpoenas.

Subpoenas: The Basics, Continued

Service

Serve a subpoena the same way you’d serve a summons.¹²⁸³ Exceptions: Use (1) substituted service to serve a subpoena under CPLR 308(2) — delivery and mail — or (2) conspicuous-place service — nail and mail — to serve a subpoena under CPLR 308(4).¹²⁸⁴ Consult CPLR 308 — personal service on a person — for service options. Choose the appropriate service method depending on when you need the witness to testify or produce documents or records.

When you serve a subpoena “on an entity or government unit of some kind, the person to be served may ordinarily be any person upon whom a summons could be served in an action brought against the entity or unit.”¹²⁸⁵

Any person over 18 who isn’t a party to the action or proceeding may serve a subpoena.¹²⁸⁶ A court may allow a party to the action or proceeding to serve a subpoena.

You may serve a nonparty subpoena any time after the action has commenced.¹²⁸⁷ When serving a subpoena duces tecum or a deposition subpoena, give the nonparty 20 days’ notice.¹²⁸⁸

After you’ve served a subpoena duces tecum, you must “promptly” serve a copy of the subpoena on the other parties to the action.¹²⁸⁹ The other parties must receive the subpoena “before the time scheduled for the [witness to] produc[e] . . . the papers or others things sought.”¹²⁹⁰ Within five days after you’ve received all or some of the items sought in the subpoena, give notice to the other parties that the items are available for inspection and copying. Specify the time and place for inspection.¹²⁹¹

When you serve a subpoena duces tecum on a large entity that has a central office and multiple branch offices, you may serve the subpoena either at the central office or at a branch office.¹²⁹²

If you’re seeking testimony from a corporate entity’s employee, serving a subpoena ad testificandum on a corporation, instead of the specific employee, permits the corporation to produce the employee to testify; no “independent basis for jurisdiction of the witness is . . . needed.”¹²⁹³

You may serve a subpoena ad testificandum on a witness’s attorney if an attorney represents that witness.¹²⁹⁴ Give the attorney enough time to produce the witness to testify in court.

In-State and Out-of-State Subpoenas

You may not serve a New York subpoena outside New York “regardless of the court involved.”¹²⁹⁵ Subpoena service is available statewide in the Supreme, County, Surrogate’s, and Family Courts as well as in the Court of Claims.¹²⁹⁶ The lower courts — Civil, District, City, and Justice Courts — have territorial restrictions on subpoenas.¹²⁹⁷

A New Yorker need not respond to a subpoena issued in “an action or proceeding [that’s] pending in a sister state.” An out-of-state subpoena isn’t covered by the long-arm statute and has “no legal effect.”¹²⁹⁸ The New Yorker’s contacts with the sibling state might, however, require the New Yorker to respond to the out-of-state subpoena.¹²⁹⁹

If you serve a New York subpoena on an out-of-state witness and the witness appears voluntarily, a court might “direct the witness to return for further testimony on future days under penalty of contempt,”¹³⁰⁰ even if the court never had jurisdiction over the person.

A corporation might be required to produce in court its officers and employees, even those “stationed outside the state.”¹³⁰¹

Consult CPLR 3119 if you’re seeking to depose a person in New York or to obtain documents located in New York for an out-of-state case or proceeding.¹³⁰²

CPLR 3119 provides that out-of-state judicial subpoenas may be submitted either to the county clerk where the discovery is to take place or to a New York-licensed attorney who represents the subpoenaed party.

Order to Show Cause

If you believe that a nonparty will destroy evidence, move by order to show cause under CPLR 2214(d), instead of serving a subpoena, for the nonparty to produce the items. The Legal Writer discussed spoliation of evidence in part XXIX of this series.¹³⁰³

Responding to a Subpoena

You have several options to respond to a subpoena. You may comply with the subpoena: appear for the examination before trial (EBT) or trial (subpoena ad testificandum); produce the records or items sought (subpoena duces tecum); or respond to the questions (information subpoena). You may also object to the subpoena. And you may move to quash, fix conditions, or modify a subpoena. But you may never ignore a subpoena.

Complying

To comply with a subpoena duces tecum, nonparties must “sign a sworn certificate attesting that the documents are correct copies of documents prepared in accord with the business records requirements of CPLR 4518.”¹³⁰⁴ To comply with a subpoena ad testificandum, appear to testify on the date, time, and location specified.

All business records produced pursuant to a subpoena duces tecum under CPLR 3120 “must be accompanied by a certification, sworn in the form of an affidavit signed by the custodian or some other qualified witness responsible for maintaining the records.”¹³⁰⁵

The custodian or qualified person must certify (1) that the person certifying the records is an appropriate person to certify; (2) that the person made a reasonable inquiry that the records produced are accurate versions of the documents sought in the subpoena; (3) that the documents produced represent all the documents demanded (if not all are produced, the person must describe the missing documents and explain their absence); and (4) that the documents produced were made in the regular course of business.¹³⁰⁶

Objecting

If you’re reluctant to comply with a subpoena, you don’t need to move to quash the subpoena; you “need only serve written objections.”¹³⁰⁷ Under CPLR 3122(a), you may, within 20 days of serving a subpoena duces tecum,¹³⁰⁸ object to the subpoena by serving a response, stating with reasonable particularity your reasons for objecting. No need to file your objections with the court.

Object in writing to the issuer of the subpoena, typically your adversary, about any irregularities in a subpoena. Point out the defects in the subpoena, either substantive or procedural. Depending on the procedural or substantive defects, you might have leverage over your adversary in putting limits on the scope of the subpoena, the time or the place for the appearance of a witness, or the production of...