R 3122.Objection to disclosure, inspection or examination; compliance.

This rule is new. It is needed because CPLR §§ 3120 and 3121 do not require orders. The motion stays the examination. See CPLR § 3103(b).

This measure would amend CPLR 3122 which provides that within 5 days of service of notice under CPLR 3120 (discovery and production) or CPLR 3121 (physical or mental examination), a party may serve a notice of motion for a protective order. This bill would change the specified 5-day time period to 10 days.

The present time period of 5 days is unrealistic and burdensome. Under CPLR 3133 a party may move to strike out an interrogatory within 10 days after service of the interrogatories. CPLR 3103 (a) provides that the court may at any time on its own initiative, or on motion of any party or witness, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. The courts’ discomfort with the brevity of the 5-day period is evinced by the holding that CPLR 3122 is “flexible at least to the extent that the section may be read in connection with CPLR 3103(a).” Edwardes v. Southampton Hospital, 53 Misc. 2d 187, 188-89 (Supreme, Suffolk 1967), where the court allowed a lapse of three weeks from the service of the notice of discovery to the motion for a protective order; see Handel v. Handel, 26 N.Y. 2d 853, 855 (1970) and cases cited in Siegel, Commentary C3122:2 on McKinney’s CPLR 3122.

The frequently expressed objection of the bar to the unworkable shortness of the time period of CPLR 3122, and the growing number of judicial decisions granting relaxation thereof, is compelling reason for immediate extension of that time period, as proposed in this bill.

This specific and acute problem presented by CPLR 3122 requires immediate solution. A more comprehensive reexamination and coordination of the time periods for suppression devices generally is also needed. The CPLR Advisory Committee intends to study this wider area with a view to a more extensive reform.

1993 Recommendations of Advisory Committee on Civil Practice:

The amendment of rule 3122 is intended to reduce the volume of motion practice arising out of disclosure procedures by eliminating the requirement that objections to requests for production of documents or other things or for physical or mental examinations be made by motion. The Committee believes that the notice procedure required by the amendment would encourage parties to resolve disputes concerning such requests without court intervention. In the event that a dispute is not so resolved, the party seeking disclosure may move for an order compelling disclosure pursuant to the proposed new section 3124.

The proposed amendment to rule 3122 also would enlarge the time of objecting to a disclosure request, and also would require a party served with a notice to produce documents to indicate to the party serving the notice if some documents are being withheld because of privilege or other legal reason and reasonably to describe such documents.

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 revised this measure to make clear that in the absence of a patient’s authorization a trial subpoena duces tecum seeking the production of medical records may be issued under CPLR 2302(b) by a court, but not an attorney, and that CPLR 3122, requiring a patient’s authorization, applies only to subpoenas issued during discovery.

In 2002, on the Committee’s recommendation, CPLR 3122 was amended, together with several other related CPLR provisions, CPLR 2305(b), 3120, and 3122-a , to make it easier to obtain discovery documents from a non-party witness and admit them into evidence. L. 2002, c.575. The legislation eliminated the requirement that a party seeking documents from a nonparty witness obtain a court order and a new, less cumbersome procedure was substituted. Among the changes made to CPLR 3122, which governs objections to and compliance with disclosure requests, was the inclusion of language at the request of the Medical Society to protect non-party physicians who were served with disclosure subpoenas seeking medical records. Language was inserted in CPLR 3122 in 2002 to help protect medical providers from unwittingly violating the physician-patient privilege by releasing medical records sought by a subpoena without a patient’s authorization.

Shortly thereafter, a judge in Richmond Civil Court in Campos v. Payne, 2 Misc.3d 921,766 N.Y.S.2d 535 (2003), held that the limitations imposed by CPLR 3122 left him without authority to order the production of medical records pursuant to a trial subpoena on the eve of trial without the patient’s signed authorization. We understand that Campos is now widely followed. It was not the Committee’s intent in recommending the amendment of CPLR 3122 that the requirement for such an authorization apply to trial subpoenas and we do not believe the Legislature had that intent in adopting the Committee’s recommendation. The Committee believes the result in Campos is inadvisable as parties and the court need to have the ability to obtain relevant records (including medical records) so that the parties’ claims and defenses can be fairly adjudicated.

This measure addresses the concerns of medical providers that they may be violating the Health Insurance Portability and Accountability Act (“HIPAA”) by releasing a patient’s medical records absent a court order by making it clear in the article governing subpoenas that, if a patient has not authorized the release of medical records, then a subpoena duces tecum for medical records may be issued only by a court and not by an attorney. The Committee recommends that CPLR 2302(b) be amended by adding a sentence providing that absent an authorization a subpoena for medical records may be issued only by a court.

Under the current language of CPLR 3122 and the ruling in Campos v. Payne there is some question whether a court may “so order” a trial subpoena duces tecum for medical records when the plaintiff has refused to authorize the release of the records. The proposed amendment to CPLR 3122(a) resolves that uncertainty by making it clear that the requirement for an authorization is not applicable to a trial subpoena issued by a court. The amendment is consistent with HIPAA, which provides that “protected health information” may be released without an authorization in response to an order of the court. 45 C.F.R. 164.516 (introductory paragraph) and 164.516(e)(1)(i).

Add, L 1962, ch 308; amd, L 1963, ch 695, § 1; L 1979, ch 80, § 1, eff Sept 1, 1979; L 1993, ch 98, § 9, eff Jan 1, 1994; L 1998, ch 295, § 1, eff July 14, 1998; L 2002, ch 575, § 3, eff Sept 1, 2003; L 2011, ch 307, § 2, eff Aug 3, 2011.