§ 2305.Attendance required pursuant to subpoena; possession of books, records, documents or papers.

Subd (a) requiring attendance on an adjourned date by virtue of the form of subpoena was the former practice under CPA § 403-a, except that the former practice required the witness to sign a stipulation. The witness will receive fees for any day on which the subpoena compels him to attend whether his testimony is taken that day or not. See new CPLR § 8001(a). The requirement of a mileage fee for each day has been retained. CPA § 403. If a short distance is involved the witness will probably return home. If a long distance is involved he will be put to the additional expense of providing lodging. There appeared to be no justification for retaining CPA § 409, which provided for attendance of persons required by a judgment, and this section was omitted.

Subd (b) is derived from CPA § 414 but it is broader than the former provision, which covered only corporations or public officials.

The Committee recommends amendments to CPLR 2305(b), 3120 and 3122 and the enactment of a new CPLR 3122-a. These proposals are intended to simplify the methods for obtaining discovery of documents, particularly routine business records, from non-party witnesses and procuring their admission into evidence, with the consequent effect of alleviating the burden upon the litigants, non-party witnesses and the courts.

The amendments are set forth below, inspired in a general way by the Federal Rules of Civil Procedure and the civil practice laws of California and Kansas, were originally proposed by the Commercial and Federal Litigation Section of the New York State Bar Association. They eliminate the requirement, under CPLR 3120 (b), that, in the absence of a non-party deposition, a party must obtain a court order before being permitted to undertake discovery and inspection of non-party documents or things. Henceforth, a subpoena duces tecum, issued by an attorney or the court clerk (if the party is pro se ), will suffice.

These changes will bring to an end the unauthorized but longstanding practice of serving upon a non-party a subpoena for a deposition and following that up with an informal suggestion that the witness can avoid appearing at the deposition by mailing copies of the documents described in the subpoena to the attorney serving the subpoena. This practice carries with it a risk of confusion and worse. ( See Matter of Beiny , 129 A.D.2d 126 (1st Dept. 1987)). Under this proposal, a party issuing a discovery subpoena must, at the same time, serve a copy upon all other parties, who will have standing to move to quash it. A non-party receiving such a subpoena is authorized to make written objection to all or part of the discovery demand, as parties now do under CPLR 3122, which is a considerably less burdensome alternative to the motion to quash.

At the request of the Medical Society, the proposal was amended in 2000 to make it clear that a physician who is served with a subpoena duces tecum requesting a patient’s medical records during the course of discovery is protected, as the measure now states that physicians need not respond or object if the subpoena is not accompanied by a written authorization by the patient. In addition, the non-party can demand reimbursement of reasonable production expenses, mirroring CPLR 3111, and may withhold such production until the expenses are paid or the issue is otherwise resolved by the court.

The proposal was further amended in 2001 to address concerns expressed by the District Attorney’s Association and other law enforcement organizations to clarify that such organizations would still be governed by CPLR 2307, which requires a court order before a subpoena duces tecum can be issued. They were concerned about fishing expeditions in civil cases which taxed their limited resources and might compromise confidential information in their files.

A recent change in CPLR 3122 (L. 1998, c. 295) requires both parties and non-parties to produce “documents or things” as they are kept in the regular course of business, or organized and labeled to correspond with the categories listed in the notice or subpoena duces tecum.

If the subpoena duces tecum directed to a non-party seeks business documents , the proposed amendments provide two avenues for production. The subpoena may require either that the non-party produce original documents at the non-party’s place of business or that copies be delivered to the seeking party (if pro se ) or his or her attorney without the need for an appearance by any witness. This will insure the integrity of the non-party production and avoid corruption of the original records, as well as guarantee a non-party the uninterrupted use of records which may be necessary for normal business operations. The seeking party is required to give to all other parties notice of the non-party’s compliance with the discovery subpoena, after which they will have a corresponding opportunity to inspect the production made by the non-party. It is anticipated that such changes will greatly reduce the inconvenience presently suffered by non-party witnesses, who are often made to appear at an unnecessary deposition, possibly at a distant location, with their original records in tow.

Where copies of non-party business records are delivered pursuant to a discovery subpoena, the non-party will also be required to sign a sworn certification attesting to the fact that the documents being produced are correct copies of “business records” which have been prepared in accordance with the evidentiary standards set forth in CPLR 4518(a). This certification will qualify the non-party business records for admission at trial as such, in a manner similar to that presently authorized for hospital records by CPLR § 2306, and the personal appearance of a non-party to lay a foundation for their admission will not be necessary. This procedure would be particularly useful for the introduction of routinely prepared business records and other documents, such as utility, telephone and bank records, statements and invoices. Any party intending to seek admission of certified records is required to give ample notice. Adverse parties would have the right to object to the proposed use of certified business records and, in any event, would retain the present right to object to the admission of such records for any reason other than lack of authentication.

While the right to command the appearance of a non-party witness at a deposition or trial, as well as the right to subpoena original records for those purposes, is not changed, the prudent use of the new rules should reduce the need to require a non-party’s appearance at a deposition or trial. To discourage reflexive demands that a custodian be produced to authenticate noncontroversial business records despite the availability of a certification of authenticity, the proposed amendment originally included a provision for the imposition of costs against a party who needlessly required the personal appearance of a non-party to authenticate business records. However, due to expressions of concern from some members of the bar that such a provision might have a chilling effect on legitimate objections, that provision ( CPLR 3122-a(d)) has been removed.

Implementation of these proposed amendments will substantially reduce the inconvenience imposed upon non-party witnesses with no adverse impact upon the quality of the evidence produced in disclosure or put into the record at trial.

The Committee has studied the procedures by which records intended for use at trial are produced pursuant to a subpoena duces tecum. The Committee believes that counsel should have the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. This is especially true where the materials are in digital format and can be delivered on a disk or through other electronic means.

In this proposal, CPLR 2305 would be amended to add a new subdivision (d) providing that where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records to all opposing counsel and self-represented parties, where applicable, forthwith in the same format.

The amendment, which has no fiscal impact upon the state, would be effective immediately and apply to all actions pending on or after such effective date.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1977, ch 451, § 1, eff July 19, 1977; L 2002, ch 575, § 1, eff Sept 1, 2003; L 2018, ch 218, § 1, effective August 24, 2018.