The New York Court of Appeals recently resolved a lower court conflict in Matter of John Kapon v. Koch, 2014 WL 1315590 (N.Y. Apr. 3, 2014), making it easier for parties to subpoena nonparties. Parties to the lawsuit must show only that the requested documents are relevant to the prosecution or defense of the action; the subpoenaing party is not required to show that it cannot obtain the documents from another source.
In New York, discovery of nonparties and parties is permitted for “all matter material and necessary in the prosecution or defense of an action.” N.Y. C.P.L.R. 3101. Discovery can be obtained from a nonparty who meets one of the following requirements:
- a person who possessed a cause of action or defense asserted in the action;
- a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and
- any other person, upon notice stating the circumstances or reasons such disclosure is sought or required
N.Y. C.P.L.R. 3101(a)(2)-(4) (emphasis added). There had been a split in lower courts concerning what “circumstances or reasons” are required before disclosure from a nonparty. The First and Fourth Departments adopted a “material and necessary” standard, only requiring that the requested discovery be relevant to the prosecution or defense of the action. By contrast, the Second and Third Departments had required the “material and necessary” standard and that the party issuing the subpoena show that the disclosures sought could not be obtained from other sources.
The New York Court of Appeals sided with the First and Fourth Departments’ more liberal interpretation. “[S]o long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” 2014 WL 1315590. Even more directly, the Court held that there is “no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source.” Id. And here, the subpoenas plainly provided the “circumstances or reasons” why the requested disclosure was sought. They included the date, time and location of the depositions and affixed copies of the amended complaint. Thus, the notice “gave petitioners sufficient information to challenge the subpoenas on a motion to quash.” Id. The Court went on to clarify both that a copy of a pleading may not always provide sufficient notice of the “circumstances or reasons” and that attaching a pleading is not the only way a subpoenaing party can comply with that requirement.
This holding is good news for parties requesting a subpoena in New York. And with the enactment of the Uniform Interstate Depositions and Discovery Act (N.Y. C.P.L.R. 3119), which liberalizes the process of obtaining out-of-state subpoenas, parties are continuing to find it easier to obtain relevant discovery information—even from out-of-state witnesses.