Joel R. Brandes
A
SUBPOENA is a process of the court, issued in conjunction with a trial or
hearing. Its purpose is to foster a party's ability to prove his case by
compelling the attendance of witnesses or the production of documentary
evidence. It is a process of the courts, not of the parties. Although it may
be issued by an attorney, it is a mandate of the court, issued for the
court. [FN1]
The
subpoena power of a New York court does not extend beyond the State of
New York. Judiciary Law s2-b (1) provides that "[a] court of
record has power to issue a subpoena requiring the attendance of a person
found in the state to testify in a cause pending in that court.'' [FN2] In
Matter of Stephen [FN3] a private placement adoption proceeding, the
Appellate Division held that the Family Court erred in issuing a judicial
subpoena directing the birth mother, an Ohio resident, to appear at a
hearing in Rochester. It held that a New York court may not direct the
service of a New York subpoena outside the State.
A
subpoena duces tecum is not a disclosure device, nor may it be used as a
substitute for pretrial disclosure. Its purpose is "to compel the
production of specific documents that [are] relevant and material to the
facts in issue in a pending judicial proceeding." [FN4] Nevertheless,
it appears that some attorneys use subpoenas as a disclosure device, prior
to and during trial.
Compelling
Attendance
A
subpoena may only be used to compel the attendance of witnesses or documents
at a trial or hearing. In Matter of Terry D., [FN5] a Juvenile Delinquency
proceeding, at respondents' request, a Family Court judge issued a subpoena
duces tecum directing a Brandeis' High School assistant principal to produce
in court "the names, addresses and telephone numbers of each student
and nonstudent who [was] in the classroom" at the time of the incident.
The subpoena was duly served, and, when the assistant principal did not
comply, respondent moved to have her held in contempt. The witness and Board
of Education cross-moved to quash the subpoena. In support of the contempt
motion, respondents' attorney averred that "the names, addresses and
telephone numbers requested are the potential witnesses to the
offenses," and in opposition to the motion to quash, he stated that the
information was sought "for only one purpose, to wit, to locate each
[witness] and subpoena him or her to appear in court to testify as to the
incident in question and what each saw.''
The
Court of Appeals pointed out that like other statewide courts of record, the
Family Court may subpoena a witness to testify and is also authorized to
issue a subpoena duces tecum in accordance with the applicable provisions of
the CPLR. Because the statutory subpoena authority is so broad, and the
recipient may be subject to contempt sanctions for failure to comply, courts
have imposed limitations on the use of subpoena power. The Court stated that
generally, a subpoena duces tecum may not be used for the purpose of
discovery or to ascertain the existence of evidence. "Rather, its
purpose is 'to compel the production of specific documents that are relevant
and material to facts at issue in a pending judicial proceeding.' " The
Court of Appeals concluded that the purpose of this subpoena duces tecum was
to obtain otherwise unavailable discovery. It held that respondent could not
use the procedural mechanism of a subpoena duces tecum to expand the
discovery available under existing law [FN6] yet in view of his motion
papers it was evident that this is precisely what respondent sought to do.
Thus, Family Court abused its discretion in denying appellants' motion to
quash.
Article
31 of the Civil Practice Law and Rules (CPLR) deals with disclosure. CPLR
3111 permits a deposition upon oral examination to be noticed by serving
upon the nonparty witness a subpoena and notice "stating the
circumstances or reasons such disclosure is sought or required.'' [FN7] The
notice may also provide for the production of books, records and documents
to be marked as exhibits and used on the examination. Adverse parties must
be afforded notice. CPLR 3107 provides that "A party desiring to take
the deposition of any person upon oral examination shall give to each party
twenty days' notice, unless the court orders otherwise.''
Where
a deposition is not sought and the sole purpose is to compel the production
of documents from a nonparty witness, pursuant to CPLR 3120(a), CPLR 3120(b)
directs that a motion must be made, on notice to all parties, with service
of the notice of motion to be made upon the nonparty in the same manner as
service of a summons. Proper service of the motion, is a jurisdictional
requirement. [FN8]
Any
information that is improperly obtained and which prejudices a substantial
right of a party, will be suppressed. CPLR 3103 (c) provides that if
"any disclosure under this article has been improperly or irregularly
obtained so that a substantial right of a party is prejudiced, the court, on
motion, may make an appropriate order, including an order that the
information be suppressed.''
The
First Department has criticized counsel severely for the practice of serving
a subpoena duces tecum upon a nonparty, without a prior motion on notice
pursuant to CPLR 3120(b). [FN9]
Without
Notice to All Parties
In
Matter of Beiny, a law firm served a subpoena to secure the production of
privileged documents, without notice to all parties. It did so by resort to
what the court referred to as "covertly issued attorneys'
subpoenas," which required appearance for an examination before trial
at counsel's office. The examination was cancelled when the documents to be
produced in conjunction with the examination were delivered one week before.
The First Department, suppressed the improperly obtained materials,
referring to counsel's conduct as "* * * a deliberate and thoroughly
unprincipled effort to obtain a litigational advantage by whatever means
seemed useful, including deceit." As a result of the "blatant
abuse * * * involving willful disregard of procedural rules, deceit, and the
covert acquisition of otherwise unobtainable privileged material," the
court disqualified counsel, concluding that suppression alone was an
inadequate remedy in that case.
In
Beiny the court suppressed the wrongfully obtained information pursuant to
CPLR 3103 (c) finding that counsel failed to comply with CPLR 3107
when it served a combined notice of deposition and subpoena duces tecum upon
the nonparty witness without notice to the trustee. Referring to CPLR 3103,
the court held that it did "not think that this provision, designed to
assure that nonparties will not be unduly burdened with discovery demands
and that discovery from nonparties is conducted in a fair and open manner,
can be avoided by resorting to the use of covertly issued attorneys'
subpoenas." The court noted that the CPLR provisions "governing
the conduct of discovery and dictating that parties be notified of
deposition and disclosure demands made upon nonparties, are well
known," and that they "are not trivial or seldom invoked
provisions; they are fundamental to the orderly and fair conduct of pretrial
litigation and are daily put to use by litigants and the courts." It
held that on the basis of the foregoing alone, suppression of the improperly
obtained materials would have been warranted pursuant to CPLR 3103 (c). It
stated:
There is no reason why a civil litigant should receive any benefit
from information acquired in a manner both deliberate and wrongful. We
perceive no harshness to the affected parties, or disservice to the truth-
seeking process, in preventing such benefit by means of suppression,
particularly where, as here, the order of suppression ultimately permits the
use of the information suppressed provided it is regularly obtained from
proper and independently developed sources. Manifestly, it is not unduly
harsh to expect and indeed to require that civil litigants gather the
information needed to prosecute or defend their actions in conformity with
the applicable CPLR provisions.
Covert
Discovery
In
Matter of Kochovos, [FN10] a law firm representing the contestants, served
15 separate judicial subpoenas duces tecum during the conduct of discovery
on nonparty witnesses without notifying the proponent. These subpoenas
commanded attendance at a deposition and production of certain records. At
the later deposition of the proponent, Penelope Danias, information that had
been obtained through the service of these subpoenas was used by the law
firm during the examination of the witness.
The
First Department held that "the deceptive practice of counsel in
engaging in this type of covert discovery warrants severe criticism. The
service of subpoenas on these nonparty witnesses, requiring production of
documents and attendance at a deposition, without notice to the other
parties to the action violates the express provisions of CPLR 3107 and 3120
(b), which require notice to all adverse parties when such discovery devices
are served on nonparties. The conduct here involved evinces an unprincipled
approach to the practice of litigation and is deplored.''
In
Safchik v. Board of Education [FN11] the First Department pointed out that
it appeared that "defendant engaged in some highly questionable
discovery tactics which should have resulted in suppression of
testimony." Approximately one year prior to the trial, plaintiff's
chiropractor received a subpoena duces tecum together with the three-dollar
fee. Upon his arrival at the courthouse, the witness was directed to the
Corporation Counsel, which maintains an office in the building. He was
interviewed by an investigator and his records examined. No notice of the
subpoena was given to plaintiffs and, therefore, no attorney for plaintiffs
was present. It held that the records and testimony presented by the witness
should have been suppressed. The records and testimony were employed at
trial to surprise plaintiffs, which was sufficiently prejudicial to warrant
suppression. There was "no excuse for defendant's failure to comply
with the requirements for discovery of a nonparty witness set forth in CPLR
3120, which mandates that a court order be obtained on notice to all adverse
parties.''
Sworn
Officer of Court
In
John C. v. Martha A., [FN12] petitioner's counsel served a trial subpoena on
respondent's hospital, returnable in the calendar part when a prior motion
for use and occupation was first noticed. The court held that aside from the
privileged nature of the materials, the subpoena was improper. The return
date was not the date set for trial and the subpoenaed materials lacked
relevance to the motion. The closing paragraph, "witness ... one of the
judges of said court" was whited out and replaced by "witness ...
[petitioners' attorney's name], one of the attorneys of said court,"
deceptively conveying that he was a court employee or official, in addition
to the "attorney for petitioner," as noted at the subpoena's foot.
The court noted that New York law permits an attorney to issue such process
only because the attorney is a sworn officer of the court. It found that
petitioner used the subpoena as a substitute for pretrial disclosure. It
held that "... this requirement is not just a bothersome formality. It
permits the court to screen for relevance and assess any assertion of
privilege." The court found that petitioner surreptitiously served the
subpoena on the hospital without either leave of court or notice to
respondent, thereby denying him the opportunity to timely assert privilege.
Petitioners' use of these medical records on the motion demonstrated that
they were not properly subpoenaed for legitimate use at trial, where their
introduction could be opposed by objection. Their method of presentation
supported the inference that they were included to embarrass respondents and
prejudice their rights. The court held that the abuse of a subpoena as a
subterfuge to breach a privilege and embarrass a party is sanctionable and
should result in suppression of the wrongfully obtained material.
Conclusion
We
believe that it is ethically and legally improper for an attorney to use a
judicial subpoena duces tecum to secure production of documents from a
nonparty witness, without an application pursuant to CPLR 3120(b) upon
notice to the witness and all parties to the proceeding.
FN(1)
Peo. v. Natal, 75 NY2d 379, 384-85; Newsday, Inc. v. Empire State
Development Corp., 2001 WL 462970 (NYAD 1 Dept).
FN(2)
See also, N.Y. Const., Art. VI, s1[c].
FN(3)
239 A.D.2d 963, 659 N.Y.S.2d 588 (N.Y.A.D. 4 Dept.).
FN(4)
Barrett v. Barrett, AD2d , 722 NYS2d 270 (3d Dept., 2001).
FN(5)
81 N.Y.2d 1042, 619 N.E.2d 389, 601 N.Y.S.2d 452.
FN(6)
Citing People v. Gissendanner, 48 NY2d, at 551.
FN(7)
See CPLR 3101[a][4]; 3106[b]; 3107.
FN(8)
Ruiz v. City of New York, 125 A.D.2d 661, 510 N.Y.S.2d 16.
FN(9)
The Second Department has held that suppression, sanctions, costs and
counsel fees were not warranted where documents were improperly obtained
without notice, where there was no prejudice. Gutierrez v. Dudock, 276 Ad2d
746, 715 NYS2d 333 (2d Dept, 2000). The Fourth Department has overlooked the
impropriety of such procedure where there was no prejudice. DiMarco v.
Sparks, 212 A.D.2d 965, 624 N.Y.S.2d 692; State of New York v. Mastracci, 77
A.D.2d 473, 433 N.Y.S.2d 946.
FN(10)
140 A.D.2d 180, 528 N.Y.S.2d 37.
FN(11)
158 A.D.2d 277, 550 N.Y.S.2d 679.
FN(12)
156 Misc.2d 222, 592 N.Y.S.2d 229.
Joel
R. Brandes has law offices in Garden City and New York City. He co- authored
the nine-volume Law and the Family New York 2nd Ed. and Law and the Family
New York Forms (both published by West Group).
FN(1)
Peo. v. Natal, 75 NY2d 379, 384-85; Newsday, Inc. v. Empire State
Development Corp., 2001 WL 462970 (NYAD 1 Dept).
6/26/2001
NYLJ 3, (col. 1)
