With global commerce massively affected by the COVID-19 pandemic, post-pandemic litigation will undoubtedly result in a rise of interstate depositions and discovery. In turn, litigants engaged in actions pending outside of New York State will seek depositions and discovery from individuals and businesses residing in New York. As a result, New York attorneys will likely be asked to provide guidance or even be retained to assist litigants in these endeavors. This blog post provides readers with a primer on the procedures for obtaining depositions and discovery in New York pursuant to the Uniform Interstate Deposition and Discovery Act found in New York Civil Practice Law and Rules (“CPLR”) § 3119 (the “Act”).
The following scenario illustrates the utility of the Act: AB, a plaintiff engaged in an action against CD pending in California, realizes during the course of discovery in the California action that CD’s accountant, EF, is in possession of CD’s records relevant to AB’s prosecution of the California action. The problem is EF is a resident of New York and AB does not have jurisdiction over EF in California. How can AB obtain CD’s records from EF and EF’s deposition in New York?
The Act allows AB or AB’s attorneys to obtain an “out-of-state” subpoena—California subpoena—“issued under authority of a court of record of a state other than this state” (CPLR 3119 [a] ; Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, C3119:2 ). Thereafter, AB must then submit the California subpoena to the county clerk in the county in which discovery is sought, typically, the county in New York where EF resides or has its principal office (CPLR 3119 [b] ; CPLR 503). The county clerk will then issue a New York subpoena (hereinafter, the “subpoena”) to be served on EF in New York (CPLR 3119 [b] ). Alternatively, AB can retain a New York licensed attorney to issue the subpoena without the need to involve the county clerk or courts (CPLR 3119 [b] ). AB must provide the New York attorney with either an original or a true copy of the out-of-state subpoena (CPLR 3119 [b] ).
Under CPLR 3119, the subpoena requires a person (defined in the statute as “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”) to “attend and give testimony at a deposition;” “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 “permit inspection of premises under the control of the person” (CPLR 3119 [a]  and [a]  [i]-; see also CPLR 3119 [d] [noting that CPLR 2303, 2305, 2306, 2307, and 2308 apply to subpoenas issued under CPLR 3119 [b]).
The New York subpoena must: “(i) incorporate the [same] 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” (CPLR 3119 [b] ).
Once issued, AB or AB’s New York attorney must serve the subpoena in accordance with CPLR 2302 (i.e., cause the subpoena to be issued with or without a court order) and CPLR 2303 (i.e., serve the subpoena in the same manner as a summons and pay in advance a witness fee for travel and attendance) (CPLR 3119 [c]).
Since there is no action or proceeding pending before any court in New York, a proceeding related to the subpoena (e.g., for protective orders or to enforce, quash or modify the subpoena) must be brought as special proceedings in the supreme court in the county where the subpoena is returnable (CPLR 3119 [e]).
In this regard, if EF fails to comply with the subpoena issued by the county clerk or a New York attorney (a non-judicial subpoena), AB can commence a special proceeding to enforce the subpoena and compel EF’s compliance pursuant to Art. 4 of the CPLR (CPLR 3119 [e]; CPLR 2308 [b] [disobedience of non-judicial subpoena]; Margulis v Zlochiver, No. 155201/2019 [Sup Ct, New York County Nov. 20, 2019] [ordering the appearance of a witness for an examination before trial “previously duly noticed . . . pursuant to the Uniform Interstate Deposition and Discovery Act and CPLR § 3119, and [to] have copies of records material to his testimony”). Likewise, if EF believes that it has grounds to seek a protective order, EF can commence a proceeding to quash or modify the subpoena (CPLR 3119 [e]; CPLR 2304). A special proceeding is commenced by filing a petition either on Notice of Petition or by Order to Show Cause (CPLR 402 and 403).
Be aware that failing to strictly comply with CPLR 3119 and the laws of New York can result in the court denying an application to compel compliance with the subpoena or for a protective order (Matter of Boyarsky, No. 53667/2014 [Sup Ct, Westchester County May 9, 2014] [denying an application for order compelling production of documents where no evidence exists that the subpoena was “issued under authority of the court of record in Massachusetts”]; Hyatt v State Franchise Tax Bd., 105 AD3d 186, 194 [2d Dept 2013] [New York law on attorney-client privilege applies on a motion for a protective order]).
Moreover, an out-of-state party cannot use a subpoena to go on a fishing expedition but only to “compel the production of specific documents that are relevant and material to the factual issues in a pending proceeding” (Matter of Home Box Office Inc. v Laster, No. 153946/2019 [Sup Ct, New York County Jun. 5, 2019] [granting motion to quash out-of-state Florida subpoena in its entirety] citing Mestel & Co., Inc. v Smythe Masterson & Judd, Inc., 215 AD2d 329 [1st Dept 1995]; Hyatt v State Franchise Tax Bd., 105 AD3d at 200-201 [citing the Recommendations of the Advisory Committee on Civil Practice: “The Act recognizes that the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in another jurisdiction from unreasonable or burdensome discovery requests.”] [citation omitted]).
Lastly, remember that CPLR 3119 only “provides a mechanism for disclosure in New York for use in an action that is pending in another state . . . , not the other way around” (see, e.g., Lerner v Newmark & Co. Real Estate, Inc., 178 AD3d 418 [1st Dept Dec. 5, 2019] citing Matter of 91 St. Crane Collapse Litig., 159 AD3d 511, 512 [1st Dept 2018]). In the latter case, CPLR 3108 controls in instances when the other state does not have a similar Uniform Depositions and Discovery Act (see Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC, No. 653145/2014 [Sup Ct, New York County Feb. 23, 2020] [issuing a commission pursuant to CPLR 3108 for information via deposition in Connecticut] citing Wiseman v American Motors Sales Corp., 103 AD2d 230, 235 [1st Dept 1984]).