NEW YORK INSTATE WITNESS SUBPOENAS
New York State provides for two methods to issue a subpoena to an instate witness for use in a proceeding outside the State of New York. Civil Practice Law and Rules sections 3102(e) and the new section 3119 which was enacted to comply with the Uniform Interstate Deposition and Discovery Act.
An application made under the CPLR 3102(e) provisions require the application to be made by a New York State attorney. There are fees involved, including court costs, and a time delay to prepare the application, file it where appropriate, and await the court order to be signed and entered.
CPLR 3102(e) Action pending in another jurisdiction. When under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition.
Notes concerning NYS Section 3102 (e) of the CPLR
1. The application for an in-state deposition for use in an out of state action is made pursuant to CPLR 3102(e)
2. Generally the application is made by ex-parte application which require the purchase of an index number but not an RJI although some counties require an RJI as well. 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.
4. The application is made in the county wherein the New York witness resides or has a place of business or office. If you have two or more witnesses, depending upon their location, you may need to file applications in more than one county.
5. Generally it is based on an out of state commission or equivalent (letters 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.
6. Except as noted above the application requires the following
- Proposed order (See sample)
- An affirmation / affidavit of the New York Attorney as to why the testimony and/or documents being sought are pertinent and necessary to the out of state action or proceeding.
- The commission or equivalent document
- A New York Subpoena that will be served with the signed order
7. If Notices of Deposition have been previously served and are available copies should be included.
8. Be advised of CPLR 3106(b) (20 days notice requirement to the witness from the date of service) 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
9. Comply with NYCRR 130-1. (not frivolous)
In Brief the attorney’s affirmation must include:
- Statement that the affidavit was prepared by a New York attorney with N.Y. address
- A brief description as to the need of the order and the basis for the application.
- 2217(b) CPLR (no previous application)
- any other statements regarding anything special or unique concerning the application
Video Taping 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 courts primary concern is to honor the commission and insure that the rights of the witness receive adequate protection. Draft your application accordingly.
Target Research can refer you to knowledgeable, experienced and capable counsel in New York.
New York CPLR 3119 was enacted in accordance with the Uniform Interstate Depositions and Discovery Act.
CPLR 3119 allows a party to an out-of-state action to obtain a deposition of a New York witness, the production, inspection and copying of designated records, or inspection of premises by submitting an out-of-state subpoena to the County Clerk of the county in which discovery is sought to be conducted. The Clerk will issue a New York subpoena for service on the witness.
To obtain a subpoena from the New York County Clerk, counsel should submit the proposed subpoena and the out-of-state subpoena to the County Clerk’s Judgment Clerk in Room 141B in the basement at 60 Centre Street. There is no fee to obtain this subpoena.
If a party to the out-of-state action retains a New York attorney and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section.
§ 3119. Uniform interstate depositions and discovery. (a) Definitions. For purposes of this section: (1) "Out-of-state subpoena" means a subpoena issued under authority of a court of record of a state other than this state. (2) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity. (3) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (4) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to: (i) attend and give testimony at a deposition; (ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody or control of the person; or (iii) permit inspection of premises under the control of the person. (b) Issuance of subpoena. (1) To request issuance of a subpoena under this section, a party must submit an out-of-state subpoena to the county clerk in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this section does not constitute an appearance in the courts of this state. (2) When a party submits an out-of-state subpoena to the county clerk, the clerk, in accordance with that court's procedure and subject to the provisions of article twenty-three of this chapter, shall promptly issue a subpoena for service upon the person to which the out-of-state subpoena is directed. (3) A subpoena under paragraph two of this subdivision must: (i) incorporate the terms used in the out-of-state subpoena; and (ii) contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel. (4) Notwithstanding paragraph one of this subdivision, if a party to an out-of-state proceeding retains an attorney licensed to practice in this state, and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section. (c) Service of subpoena. A subpoena issued under this section must be served in compliance with sections two thousand three hundred two and two thousand three hundred three of this chapter. (d) Deposition, production and inspection. Sections two thousand three hundred three, two thousand three hundred five, two thousand three hundred six, two thousand three hundred seven, two thousand three hundred eight and this article apply to subpoenas issued under subdivision (b) of this section. (e) Application to court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under this section must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be conducted. (f) Uniformity of application and construction. In applying and constructing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.