Subpoenas: Compelling Witness Attendance and Productions at Trial

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 525-554

SUBPOENAS

CHAPTER 17

SUBPOENAS:

COMPELLING WITNESS

ATTENDANCE AND

PRODUCTIONS AT TRIAL

§17:01 New York Trial Notebook 17-2

SUBPOENAS

I. GENERAL POINTS

§17:01 Purpose

Subpoenas are used to obtain testimony or

production of documents or things, and are governed

by CPLR Article 23 and Article 31. A subpoena ad

testificandum, commonly referred to as a “witness

subpoena” (and referred to in CPLR 2301 as simply

a “subpoena”) mandates appearance by a witness to

give oral testimony only. A subpoena duces tecum

requires production of books, papers, or “things”

at trial. [CPLR 2301.] The purpose of a subpoena

deuces tecum is “to compel the production of

specific documents that are relevant and material to

facts at issue in a pending judicial proceeding.” [In

re Terry D., 81 NY2d 1042, 1044, 601 NYS2d 452,

453 (1993), Myrie v. Shelley, 237 AD2d 337, 338,

655 NYS2d 66, 67 (2d Dept 1997).] Amendments

to CPLR 2305(b) effective September 1, 2003

allow a subpoena duces tecum to be joined with a

witness subpoena.

NOTE:

CPLR 3106(b) governs subpoenas for

examinations before trial (depositions) of

non-parties, and requires that the subpoena

be served at least twenty days before the

examination. CPLR 3111 provides that such

a subpoena may also require production of

documents, with the reasonable production

expenses of the non-party defrayed by the

party seeking production. A party simply

seeking production of materials from a non-

party or seeking to enter into the non-party’s

property and who does not desire testimony

may serve a subpoena duces tecum pursuant

to CPLR 3120. Again, the time specified for

production must be at least twenty days after

service. [CPLR 3120 was amended effective

September 1, 2003; before then, to obtain

production from non-parties a party was

required to make a motion on notice.]

NOTE:

“Contrary to the plaintiffs’ contention,

documents obtained by subpoena cannot be

admitted into evidence without a proper

evidentiary foundation.” [Rush v. Save My

Home Corp., 145 AD3d 930, 932, 45 NYS3d

113, 115 (2d Dept 2016).] Of course, this

advice would apply to all parties, not just

plaintiffs.

§17:02 Notice to Produce at Trial

Distinguished

Notices to produce at trial require other parties

to produce documents or things at trial. The party

receiving the request should either make the ite ms

available at trial, or seek protection from the court.

Such notices are not derived from the CPLR,

rather, they are a creation of case law. [Weinstein

Korn Miller §2301.06; See, e.g., Estate of Kiame,

309 NY 325, 130 NE2d 745 (1955) (argument

made that surrogate’s court erred in refusing to

compel production of report at trial, not ruled upon

by Court of Appeals).]

Failure to produce properly designated

documents or things may result in their being

excluded as evidence by the party in possession,

or allowing the seeking party to use secondary

evidence. [Smith v. Rentz, 131 NY 169, 30 NE2d

54 (1892) (trial court erred in admitting ledger

produced by defendant in response to plaintiff’s

notice).] “The party who has in his possession

books or papers which may be material to the case

of his opponent, has no moral right to conceal

them from his adversary. If on inspection the party

calling for them finds nothing to his advantage,

his omission to put them in evidence does not

prevent the party producing them from proving and

introducing them in evidence if they are competent

against the other party. [But] [t]he party calling

for books and papers would be subjected to great

hazard if an inspection merely, without more,

would make them evidence in the case.” Smith v.

Rentz, 131 NY at 170, 30 NE2d at 56. But compare

Corriel v. Volkswagen of America, Inc., 127 AD2d

729, 512 NYS2d 126 (2d Dept 1987) (party’s

failure to produce information in discovery will

lead to its preclusion at trial). The notice to produce

at trial is not a disclosure device, although if the

material had never been obtained beforehand, it

may in effect become a discovery device at trial.

[General Instrument Corp. v. Consolidated Edison

Co. of New York, 99 AD2d 460, 471 NYS2d 291

(1st Dept 1984).]