R 3120.Discovery and production of documents and things for inspection, testing, copying or photographing.

This rule is based on New Jersey rule 4:24-1, which is patterned after Federal rule 34. It has been substantially modified to permit use of the device on notice. A proposed amendment to rule 34 of the Federal rules permits “discovery without court order” of designated documents. Report of the Advisory Committee on Federal Rules 38– 40 (Oct. 1955). This rule is more extensive than that in the report of May, 1954 at pages 31–32. See Colo Rev Stat Ann, R. Civ P 34 (1953); 3 Md Ann Code 4859 et seq., Gen Rules Prac and Proc, Discovery Rule 4(3) (1951); Mo Ann Stat § 510.030 (1952). Photographing by motion pictures has been explicitly permitted, to avoid some restrictive decisions in New York permitting still pictures only. CPA § 324 permitted discovery only on order. CPA § 327 provided, however, for discovery on notice of a document mentioned in a pleading or affidavit. The use of the word, “specifically” before “designated” in paragraphs 1 and 2, and “specified with reasonable particularity in the notice” at the end of paragraph 1, prevents the service of conventionalized “blunderbuss” notices.

1993 Recommendations of Advisory Committee on Civil Practice:

The purpose of the requirement in rule 3120(a) that a party designate the items he or she seeks to inspect is to enable the party served with the notice to determine what items are requested and to enable the court to determine whether the requested items have been produced. Cf. 8 Wright & Miller, Federal Practice and Procedure § 2211 at 631. The present requirement that the requested items be “specifically” designated lends itself to restrictive interpretation under which technical defects may frustrate reasonable discovery requests. In addition, a party frequently must conduct a deposition in order to obtain the information enabling that party to designate the requested items with the required specificity. See, e.g., King v. Morris , 57 A.D.2d 530 (1st Dept. 1977). This result has been justified on the theory that the deposition may be necessary for proper resolution of objections to the discovery request. Rios v. Donovan , 21 A.D.2d 409, 413-14 (1st Dept. 1964). The Committee believes that a party who can reasonably identify a requested item or category of items should not need to conduct a deposition in order to establish the existence and specific identities of the requested items. In most instances, the Committee believes, pretrial discovery will be conducted more efficiently and effectively if a party can obtain materials for use in preparing for a deposition. If the party to whom the request is made objects on the ground that it is unduly burdensome, includes materials which are not discoverable, or is improper in some similar respect, the party should state the objections pursuant to rule 3122 “rather than seeking shelter behind a claim of insufficient designation.” 8 Wright & Miller, supra , at 634. However, the Committee would retain the requirement in CPLR 3120(a)(ii) for specific designation of the object or operation to be inspected, measured, surveyed, sampled, tested, photographed or recorded, where entry upon land or property is to be permitted.

2002 Recommendations of Advisory Committee on Civil Practice:

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.

Formerly § 3120, add, L 1962, ch 308; renumbered Rule 3120, L 1962, ch 315, § 1; L 1984, ch 294, § 7; L 1993, ch 98, § 8, eff Jan 1, 1994; L 2002, ch 575, § 2, eff Sept 1, 2003.