Motion to Quash Subpoena in New York

What Is a Motion to Quash Subpoena?

Background

“A subpoena requires the attendance of a person to give testimony.” (Civ. Prac. Law & Rules, § 2301.) The subpoena power of a New York Court extends to entities found in the state. (In re Oxycontin II, 76 A.D.3d 1019, 1021 [2nd Dept. 2010].)

“A motion to quash or vacate” is “the proper and exclusive vehicle to challenge the validity of a subpoena” (Brunswick Hosp. v. Hynes, 52 N.Y.2d 333, 339 [1981].)

How to Structure the Motion

A subpoena is valid where the court has jurisdiction over the subpoenaed party or where the subpoenaed party consents to the personal jurisdiction of the court in the matter. (Cherfas v. Wolf, 20 Misc. 3d 1118(A).) Two components must be satisfied for a court to have personal jurisdiction over a person:

Service of process must be properly effectuated; and
The court must have power to reach the party in order to enforce its judicial decrees.

(Id.; Keane v. Kamin, 94 N.Y.2d 263 [1999].)

A person from whom discovery is sought may file an application for protective order or to quash or modify a subpoena pursuant to the rules or statutes of New York. (Civ. Prac. Law & Rules, § 3119(e).)

“[T]he subpoenaing party must first sufficiently state the ‘circumstances or reasons’ underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it.)” (Kapon v. Kotch, 23 N.Y.3d 32, 34, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014].) A party moving to quash a subpoena bears the initial burden of demonstrating that the information sought is “utterly irrelevant” or that “the futility of the process to uncover anything legitimate is inevitable or obvious.” (Matter of Kapon v. Koch, 23 N.Y.3d 32, 38 [2014].)

It is well-settled that a trial subpoena cannot be used as a means to obtain materials that could have otherwise been obtained in pre-trial discovery. (Mestel & Co. v. Smythe Masterson & Judd, Inc., 215 A.D.2d 329, 330 [1st Dept. 1995].) Such “fishing expeditions” are prohibited by the court and cannot be used as a substitute for discovery when a party attempts to ascertain the existence of evidence. (In the Matter of Terry D., 81 N.Y.2d 1042, 1044 [1993].) Courts have quashed subpoenas when a party seeks production of materials and witnesses that could have been sought during discovery. (Bour v. 259 Bleeker LLC, 104 A.D.3d 454 [1st Dept. 2013].)

It is equally well-established that courts must protect the targets of subpoenas where their purpose seems to be to harass or annoy. (In re Application of Law Offices of Paul A. Lange, 245 A.D.2d 118, 119 [1st Dept. 1997]; Markowitz v. Fein, 36 A.D.2d 707, 707 [1st Dept 1971].)

Defendants have standing to move to quash a subpoena served on non-parties. (Civ. Prac. Law & Rules, § 2304; Civ. Prac. Law & Rules, § 3103.) A motion to quash may be made on behalf of a non-party witness by the witness or the witness’ lawyer, or by one of the parties or a party’s lawyer. (Nexray Medical Imaging PC v. Allstate Ins. Co., 39 Misc. 3d 1237(A).)

The Court’s Decision

Section 3103 of Civil Practice Law and Rules “confers broad discretion upon a court to fashion appropriate remedies” to prevent the abuse of disclosure devices. (Lipin v. Bender, 84 N.Y.2d 562, 570 [1994].)

New York Courts may grant a party’s motion to quash a subpoena on a number of grounds, including lack of issuing authority, irrelevancy/remoteness, immateriality, bad faith and harassment. (People v. Fleschner, 415 N.Y.S.2d 66, 67 [2nd Dept. 1979]; Occidental Chemical Corp. v. Flacke, 115 Misc. 2d 185 [Sup. Ct. N.Y. 1982].) In exercising its discretion to determine the appropriateness, reasonableness, terms and conditions of any particular discovery demand, the court must balance competing interests of the parties involved. (Wander v. St. John’s Univ., 67 A.D.3d 904, 905 [2nd Dept. 2009].)

Especially in the context of a civil dispute between private parties, the “broadly stated standard” that a subpoena should be quashed if the materials sought are utterly irrelevant “should not serve as an excuse for a court to abdicate its responsibility to determine whether the materials sought are in fact relevant to a legitimate subject of inquiry or to permit the subpoena power to be used as a tool of harassment.” (Reuters Ltd. v. Dow Jones Telerate, Inc., 231 A.D.2d 337, 341-42 [1st Dept. 1997].)

Timeline

A motion to quash a subpoena “shall be made promptly in the court in which the subpoena is returnable.” (Civ. Prac. Law & Rules, § 2304.) “‘[P]romptly’ means that the motion must be served before the return date of the subpoena.” (Angel Capobianco, Inc. v. Brentwood Union Free School Dist., 2009 NY Slip Op 32405 [Sup. Ct. Suffolk Cty. 2009].)

Documents for Motion to Quash Subpoena in New York

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Tatsumi Fukasawa v. Jkb Daira, Inc. document preview

ORDER TO SHOW CAUSE (PROPOSED) (AMENDED) (Motion #1)

2 pages

STATE OF NEW YORK COUNTY OF WESTCHESTER : TATSUMI FUKASAWA : : PETITION Petitioner, : : Index No. ________________ v. : …