Article 31. Disclosure · Last amended 2014 · Last verified July 21, 2026
(a) Business records produced pursuant to a subpoena duces tecum under rule 3120 shall be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness charged with responsibility of maintaining the records, stating in substance each of the following:
1. The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification;
2. To the best of the affiant’s knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody, or control of the person receiving the subpoena;
3. To the best of the affiant’s knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and 4. The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.
(b) A certification made in compliance with subdivision (a) is admissible as to the matters set forth therein and as to such matters shall be presumed true. When more than one person has knowledge of the facts, more than one certification may be made.
(c) A party intending to offer at a trial or hearing business records authenticated by certification subscribed pursuant to this rule shall, at least thirty days before the trial or hearing, give notice of such intent and specify the place where such records may be inspected at reasonable times. No later than ten days before the trial or hearing, a party upon whom such notice is served may object to the offer of business records by certification stating the grounds for the objection. Such objection may be asserted in any instance and shall not be subject to imposition of any penalty or sanction. Unless objection is made pursuant to this subdivision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this subdivision, business records certified in accordance with this rule shall be deemed to have satisfied the requirements of subdivision (a) of rule 4518. Notwithstanding the issuance of such notice or objection to same, a party may subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing.
(d) The certification authorized by this rule may be used as to business records produced by non-parties whether or not pursuant to a subpoena so long as the custodian or other qualified witness attests to the facts set forth in paragraphs one, two and four of subdivision (a) of this rule.
Getting a witness to trial just to say “yes, these are our records, kept the way we always keep them” wastes everyone's time. CPLR 3122-a replaces that testimony with paper. A custodian who produces business records under a CPLR 3120 subpoena can instead sign a sworn certification covering the essentials: that the signer has authority to certify the records, that the records are accurate copies of what the subpoena covered, that they're complete or an explanation is given for what's missing, and that they were made in the regular course of business at or near the time of the events they record.
A certification made this way is presumed true, and it satisfies the business-records foundation that CPLR 4518 otherwise requires a witness to lay at trial. But the shortcut isn't automatic. The party planning to offer certified records has to give notice at least thirty days before trial, and any other party can object up to ten days before trial by stating the grounds for the objection — but those grounds can be almost anything, since the statute allows the objection to be made in any instance without penalty or sanction. An objection forces the old-fashioned route: a live witness at trial.
The certification device isn't limited to subpoenaed records. A non-party who hands over business records voluntarily, without a subpoena, can still use the same certification to authenticate them, so long as the certifier attests to authority, accuracy, and regular business-record 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.
2014 Recommendations of the Advisory Committee on Civil Practice.
Rule 3122-a was adopted to facilitate the introduction of business records produced by third parties either in discovery or for trial. It eliminates the need to bring in a custodian or other witness to testify to the authenticity of records by allowing such a custodian or other qualifying witness to provide a certification to that effect accompanying the documents.
One serious limitation to rule 3122-a as it currently exists is that it applies only to business records produced pursuant to a subpoena duces tecum under rule 3120. The Committee sees no reason that this desirable procedure should be limited to records produced solely pursuant to subpoena. In many cases, documents may be produced by third parties voluntarily, and those parties should not be put to the inconvenience of having to produce a witness to testify at trial as to the authenticity, regularity and completeness of the documents. Thus, the Committee proposes that rule 3122-a be amended to add a new subdivision allowing its certification procedures to apply to all business records produced by nonparties whether or not pursuant to subpoena.
It bears noting that any party may object to the procedure set forth in rule 3122-a after receiving notice from the party intending to use that procedure to introduce business records at trial. Upon such an objection, the introducing party may bring in a witness at trial to testify to lay the foundation for admission of the documents. Further, rule 3122-a does not supplant the procedure set forth in CPLR 2306 as to the introduction of hospital and municipal records at trial. A party seeking to introduce those records may still rely upon the procedure set forth in § 2306 or, alternatively, may follow the rule 3122-a procedures.
Add, L 2002, ch 575, § 4, eff Sept 1, 2003; L 2014, ch 314, § 1, effective August 11, 2014.