BlogLitigationFAQs: What are Subpoenas? All About Subpoenas in New York

June 27, 2022by Jeffrey Davis

In General

A subpoena is a legal document that orders a person to comply with certain court-related requests. Parties in an action often use subpoenas to obtain information or testimony from a specific person — usually from a non-party.

In general, there are two types of subpoenas: A subpoena for a person’s attendance to give testimony, and a subpoena for a person to hand over certain documents (books, papers, etc.)

Wondering how subpoenas in New York work? Or who can issue a subpoena in New York? Or how far in advance must a subpoena be served in New York State?

Below is everything you need to know about subpoenas in New York:

What are the Two Types of Subpoenas?

As noted above, there are two general types of subpoenas:
(1) subpoenas for people to give testimony; and
(2) subpoenas for people to hand over certain documents.

In New York civil practice, a testimonial subpoena is referred to as simply a “subpoena,” or “subpoena ad testificandum” while a document subpoena is referred to as a “subpoena duces tecum.”

(Under the New York Civil Practice Law and Rules (CPLR), there are also “information subpoenas,” which provide information to a judgment creditor relating to satisfying a money judgment.)

A subpoena for testimony may command an individual or entity to:
• provide testimony at a deposition, hearing, or trial (CPLR 2301); or
• provide production of documents that are marked as “exhibits” used during the testimony, such as items in the possession, custody, or control of the witness (CPLR 3111).

A subpoena duces tecum may command an individual or entity to:
• produce, or make available for inspection, books, papers, and other documents, including electronically stored information (CPLR 2301).

A subpoena duces tecum may be combined with a testimonial subpoena, or they may be issued separately. Subpoenas and subpoenas duces tecum can also be either judicial (issued by a judge) or nonjudicial (not issued by a judge, clerk, or officer of the court).

When are Subpoenas Used?

The CPLR permits subpoenas to be issued at virtually any stage of litigation, including before a lawsuit has been filed (CPLR 3102[c]) and after a judgment has been entered (CPLR 5223).

That said, subpoenas typically are used pre-trial. Subpoenas to obtain disclosure before trial are called “disclosure subpoenas,” while subpoenas used to secure testimony or documents for trial are called “trial subpoenas.”

Disclosure subpoenas are used by parties who want to obtain disclosure of discovery during the pre-trial phase of litigation, usually from nonparties. If there is any doubt whether a witness is a party or under the control of a party, it may be appropriate to issue a disclosure subpoena.

Note: The CPLR does not explicitly prohibit serving disclosure subpoenas on parties; however, using other devices, such as document requests, deposition notices, and interrogatories, are regarded as the better practice. These devices are implemented by service of a notice in the same manner, and effective sanctions may still be imposed on parties for failing to comply with a disclosure demand; therefore, there is usually no need to use subpoenas to obtain disclosure from parties to the action.

Trial subpoenas are used to secure testimony, documents, or other evidence for the trial itself. Like disclosure subpoenas, trial subpoenas generally are used to obtain evidence from nonparties.

Who Can Issue a Subpoena in New York?

Judicial subpoenas are issued by a judge, clerk, or any other officer of the court, including the attorney in a case (CPLR 2302[a]).

Nonjudicial subpoenas are issued in connection with an administrative proceeding or arbitration (CPLR 2302[b]).

Who Can Serve a Subpoena in New York?

Anyone not a party to the action, who is over the age of 18, and not a police officer, may serve a subpoena in New York.

Does a Subpoena have to be Served in Person in New York?

In New York, a document or testimonial subpoena must be served in the same manner as a summons (CPLR 2303[a]).

Service of a summons is governed by Article 3 of the CPLR. While all methods under Article 3 are available for serving a subpoena, the best practice is to serve the subpoena by personal (in-hand) delivery.

Aside from personal service, other methods of serving a subpoena include:
• The affixing and mailing method, which first requires diligent attempts to serve an individual personally.
• Service by mail, which requires the recipient to return an acknowledgment of receipt of the subpoena.
• Service by publication in newspapers, which requires diligent attempts at other methods of service and a court order on motion without notice. This is the most difficult method with the highest probability of potential delay, so it is unlikely (though not impossible) that you will be served a subpoena through publication in newspapers.

A subpoenaed person must be served a “reasonable” amount of time prior to the date of appearance. It is suggested that service be at least 5 days before the date of the hearing (and a city or state agency or a public library must be served at least 24 hours prior to the time of appearance).

A subpoena may be served on a Sunday.

General Requirements of a Subpoena in New York

In general, subpoenas in New York should contain:

• The identity of the court from which the subpoena is issued, if it differs from that of the underlying action.
• The case caption of the underlying action, including the name of the court and the venue; the name of the parties; the index number (the case number); and the assigned judge, if one has been assigned.
• The type of subpoena being issued — subpoena; subpoena duces tecum; both subpoena and subpoena duces tecum, if combining the two; or information subpoena.
• The name and address of the individual or entity being subpoenaed.
• The date when documents must be produced, testimony must be provided, or responses to an information subpoena must be made (known as the return date).
• The place where documents must be produced or testimony must be provided.
• The issuing attorney’s signature, name, address, and telephone number, the date the subpoena was signed, and which party the attorney represents.

For a judicial subpoena, the subpoena should also include a section that states that failure to comply with the subpoena can result in contempt of court, a penalty of up to $150, and any damages sustained resulting from the failure to comply.

Contribution by: Maria Fischer

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