If you need to issue a subpoena to depose a witness or to acquire documents from a witness located in New York State for use in an action venued outside of New York, you must make an ex-parte application before the regular trial court (the New York State Supreme Court) in the county where your witness resides or does business.  Below you will find complete instructions and forms to assist you.  Note that the application must be made by an attorney licensed to practice law in New York.  If you need assistance in locating an attorney experienced in this area, please contact us and we will be glad to recommend competent counsel.

 NYS CPLR 3102(e) Instructions as Provided by the New York County Supreme Court Ex-Parte Clerk
 Click here to download sample Order - in HTM format

1.  The application for an instate deposition for use in an out of state action is made under the authority of CPLR 3102(e).

2.  Generally the action is made by ex-parte application which requires the purchase of an index number but not an RJI (Request for Judicial Intervention).  In some situations the application may be made by order to show cause.

3.  The application must be made by a New York attorney with a New York address. For local legal representation in New York in the preparation and submission of all applications, motions, petitions and actions, or to conduct examinations and depositions, CONTACT US FOR REFERRALS

4.  Generally it is based on an out of state commission or equivalent (letter of rogatory).  In some states the basis of the application is made by proceeding on notice.  If that is the method used then copies of the notice of deposition must accompany the application with appropriate proofs of service.

5.  Except as noted above the application requires the following:
                a:  Proposed Order
                b:  An affidavit of the New York attorney
                c:  The commission or equivalent document
                d:  A  New York subpoena that will be served with the signed order

6.  If Notices of Deposition have been previously served and are available, copies should be included.

7.  Be advised that CPLR 3106(b) (20 days notice).  If you seek a waiver of the requirement, you must make reference to it in the affidavit and provide as much documentary evidence as possible (written consents, etc.) (also be aware of CPLR 3107).

8.  Comply with NYCRR 130-1.1 (not frivolous).

9.  In brief, the attorney's affidavit must include:
                 a:  Statement that the affidavit was prepared by a New York attorney with a New York address.
                 b:  A brief description as to the need of the order and the basis for the application.
                 c:  Statement pursuant to CPLR 2217(b) (no previous application)
                 d:  Any other statements regarding anything special or unique concerning the application.

10.  Videotaping of any deposition is only allowed if the commission specifically provides for it.  Uniform rules provide that the name and address of the operator be included in the order, affidavit and on the subpoena (see rule 202.15).

Remember that the court's primary concern is to honor the commission and insure that the rights of the witness receive adequate protection; draft your application accordingly.  If your commission is specific as to date, time, place, etc., the court is bound by the commission, so include it in your order.