Subpoena Duces Tecum in New York

What Is a Subpoena Duces Tecum?

Background

The purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to the factual issues in a pending proceeding. (Matter of Terry D., 81 N.Y.2d 1042 [1993].)

How to Structure the Motion

Section 3101(a) of Civil Practice Law and Rules provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” (Civ. Prac. Law & Rules, § 3101(a).)

“After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces term.” (Civ. Prac. Law & Rules, § 3120.) A subpoena duces tecum requires another person “to produce and permit the party seeking discovery” to “inspect, copy, test or photograph any designated documents or any things which are in possession, custody or control of the party or person served.” (Id.)

To be enforceable, a subpoena seeking documents and testimony should describe the items sought in an unambiguous manner. (Velez v. Hunts Point Multi-Service Center, Inc., 29 A.D.3d 104 [1st Dept. 2006].) The proponent of the subpoena must set forth some basis that the production of the demanded documents is “material and necessary” to the underlying litigation and to “describe” the items sought so far as is practicable. (Revyuk v. Dunbar, 12 Misc. 2d 713 [N.Y. Sup. Ct. 1957].)

“[A] subpoena duces tecum shall be served in the same manner as a summons…. Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee.” (Civ. Prac. Law & Rules, § 2303(a).)

Response

A subpoena may be quashed where the material requested is utterly irrelevant to any proper inquiry. (General Electric Co. v. Rabin, 184 A.D.2d 391 [1st Dept. 1992].)

It is well-settled that it is improper for a party to issue a subpoena duces tecum “for the purposes of discovery or to ascertain the existence of evidence.” (In re Terry D., 81 N.Y.2d 1042, 1044 [1993]; People v. Gissendanner, 48 N.Y.2d 543, 551 [1979]; Murray v. Hudson, 43 A.D.3d 936 [2007].) Where a party issues a subpoena to “improperly engage in discovery” or to launch a “fishing expedition,” the subpoena is improper and should be quashed by the court. (Oak Beach Inn Corp. v. Town of Babylon, 239 A.D.2d 568, 568 [2nd Dept. 1997].) The burden of proving an item should not be produced is on the party required to make a disclosure. (New York State Elec & Gas Corp. v. Lexington Ins. Co., 160 A.D.2d 261, 553 N.Y.S.2d 369 [1st Dept. 1990].)

“Unless the subpoena duces tecum directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.” (Civ. Prac. Law & Rules, § 3122(d).)

The Court’s Decision

Despite the liberal standards governing discovery, the court has “broad discretion” to determine whether the discovery sought by a part is “material and necessary” to the prosecution or defense of an action. (Inter-Power of New York, Inc. v. Niagara Mohawk Power Corp., 259 A.D.2d 932 [3rd Dept. 1999].)

“[I]f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination,” then the matter should be considered “material” and “necessary.” (Allen v. Crowell-Collier Publ’g Co., 21 N.Y.2d 403, 407, 288 N.Y.S.2d 449 [1968].) The court may grant a protective order in order to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.” (Lange v. Roman Catholic Diocese of Dallas, 170 Misc. 2d 43, 45 [Sup. Ct. N.Y. Co. 1996].)

Timeline

“The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service of the notice or subpoena.” (Civ. Prac. Law & Rules, § 3120(2).)

Documents

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Case Filed

Jun 21, 2022

Case Status

Active

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Filed Date

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Filed Date

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Type

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