STATE OF NEW YORK
       ________________________________________________________________________
 
                                         6092
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 5, 2001
                                      ___________
 
       Introduced by M. of A. BRENNAN -- Multi-Sponsored by -- M. of A. McENENY
         -- read once and referred to the Committee on Codes
 
       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         production of non-party business records
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Subdivision (b) of section 2305 of the civil practice law
    2  and rules is amended to read as follows:
    3    (b) Subpoena duces tecum; attendance by substitute.    1.  A  subpoena
    4  duces tecum may be joined with a subpoena to testify at a trial, hearing
    5  or examination or may be issued separately.
    6    2.  Any  person  may  comply  with a subpoena duces tecum for a trial,
    7  hearing or examination by  having  the  requisite  books,  documents  or
    8  things produced by a person able to identify them and testify respecting
    9  their origin, purpose and custody.
   10    § 2. Section 3120 of the civil practice law and rules, subdivision (a)
   11  as  amended  by  chapter  98  of the laws of 1993 and subdivision (b) as
   12  added by judicial conference proposal number 2 for  the  year  1966,  is
   13  amended to read as follows:
   14    §   3120.  Discovery  and  production  of  documents  and  things  for
   15  inspection, testing, copying or photographing.  [(a) As against  party:]
   16  1.  After  commencement  of  an action, any party may serve on any other
   17  party a notice or on any other person a subpoena duces tecum:
   18    (i) to produce and permit the  party  seeking  discovery,  or  someone
   19  acting  on  his  or her behalf, to inspect, copy, test or photograph any
   20  designated documents or any things which are in the possession,  custody
   21  or control of the party or person served; or
   22    (ii)  to  permit  entry  upon designated land or other property in the
   23  possession, custody or control of the party or  person  served  for  the
   24  purpose  of  inspecting, measuring, surveying, sampling, testing, photo-
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08791-01-1

       A. 6092                             2
 
    1  graphing or recording by motion pictures or otherwise  the  property  or
    2  any specifically designated object or operation thereon.
    3    2.  The  notice  or subpoena duces tecum shall specify the time, which
    4  shall be not less than twenty  days  after  service  of  the  notice  or
    5  subpoena,  and the place and manner of making the inspection, copy, test
    6  or photograph, or of the entry upon the land or other property  and,  in
    7  the  case of an inspection, copying, testing or photographing, shall set
    8  forth the items to be inspected, copied, tested or photographed by indi-
    9  vidual item or by category, and shall describe each  item  and  category
   10  with reasonable particularity.
   11    [(b)  As  against  non-party.  A person not a party may be directed by
   12  order to do whatever a party may be directed  to  do  under  subdivision
   13  (a).  The  motion  for  such  order  shall  be  on notice to all adverse
   14  parties; the non-party shall be served with the notice of motion in  the
   15  same  manner  as a summons. The order shall contain, in addition to such
   16  specifications as the notice is required to contain under paragraph  two
   17  of  subdivision  (a), provision for the defraying of the expenses of the
   18  non-party.]
   19    3. The party issuing a subpoena duces tecum  as  provided  hereinabove
   20  shall  at  the  same  time  serve  a copy of the subpoena upon all other
   21  parties and, within five days of compliance therewith, in  whole  or  in
   22  part,  give  to  each  party  notice that the items produced in response
   23  thereto are available for inspection and copying,  specifying  the  time
   24  and place thereof.
   25    §  3.  Rule  3122  of  the civil practice law and rules, as amended by
   26  chapter 98 of the laws of 1993 and subdivision (c) as added  by  chapter
   27  295 of the laws of 1998, is amended to read as follows:
   28    Rule 3122. Objection to disclosure, inspection or examination; compli-
   29  ance.  (a)  Within  twenty days of service of a notice or subpoena duces
   30  tecum under [rule] section 3120 or section 3121, the party or person  to
   31  whom  the  notice  or subpoena duces tecum is directed, if that party or
   32  person objects to the disclosure, inspection or examination, shall serve
   33  a response which shall state with reasonable particularity  the  reasons
   34  for each objection. If objection is made to part of an item or category,
   35  the  part  shall be specified.  A physician served with a subpoena duces
   36  tecum requesting the production of a patient's medical records  pursuant
   37  to  this rule need not respond or object to the subpoena if the subpoena
   38  is not accompanied by a written authorization by the patient. The  party
   39  seeking  disclosure  under  [rule] section 3120 or section 3121 may move
   40  for an order under rule  3124  or  section  2308  with  respect  to  any
   41  objection  to,  or  other  failure to respond to or permit inspection as
   42  requested by, the notice or subpoena duces tecum, respectively,  or  any
   43  part thereof.
   44    (b)  Whenever a person is required pursuant to such a notice, subpoena
   45  duces tecum or order to produce documents for inspection, and where such
   46  person withholds one or more documents that  appear  to  be  within  the
   47  category  of  the documents required by the notice, subpoena duces tecum
   48  or order to be produced, such person shall  give  notice  to  the  party
   49  seeking  the production and inspection of the documents that one or more
   50  such documents are being withheld. This notice shall indicate the  legal
   51  ground for withholding each such document, and shall provide the follow-
   52  ing  information  as to each such document, unless the party withholding
   53  the document states that divulgence  of  such  information  would  cause
   54  disclosure  of  the  allegedly privileged information:   (1) the type of
   55  document; (2) the general subject matter of the document; (3)  the  date

       A. 6092                             3
 
    1  of  the  document;  and  (4)  such other information as is sufficient to
    2  identify the document for a subpoena duces tecum.
    3    (c)  Whenever a person is required pursuant to such notice or order to
    4  produce documents for inspection, that person shall produce them as they
    5  are kept in the regular course of business or shall organize  and  label
    6  them to correspond to the categories in the request.
    7    (d) Unless the subpoena duces tecum directs the production of original
    8  documents  for  inspection and copying at the place where such items are
    9  usually maintained, it shall be sufficient for the  custodian  or  other
   10  qualified person to deliver complete and accurate copies of the items to
   11  be  produced.  The reasonable production expenses of a non-party witness
   12  shall be defrayed by the party seeking discovery.
   13    § 4. The civil practice law and rules is amended by adding a new  rule
   14  3122-a to read as follows:
   15    Rule  3122-a.  Certification of business records. (a) Business records
   16  produced pursuant to a subpoena duces tecum under section 3120 shall  be
   17  accompanied  by  a  certification, sworn in the form of an affidavit and
   18  subscribed by the custodian or  other  qualified  witness  charged  with
   19  responsibility  of maintaining the records, stating in substance each of
   20  the following:
   21    1. The affiant is the duly authorized  custodian  or  other  qualified
   22  witness and has authority to make the certification.
   23    2.  To  the best of the affiant's knowledge, after reasonable inquiry,
   24  the records or copies thereof are accurate  versions  of  the  documents
   25  described in the subpoena duces tecum that are in the possession, custo-
   26  dy, or control of the person receiving the subpoena.
   27    3.  To  the best of the affiant's knowledge, after reasonable inquiry,
   28  the records or copies produced represent all the documents described  in
   29  the  subpoena duces tecum, or if they do not represent a complete set of
   30  the documents subpoenaed, an explanation of which documents are  missing
   31  and a reason for their absence is provided.
   32    4.  The records or copies produced were made by the personnel or staff
   33  of the business, or persons acting under their control, in  the  regular
   34  course  of  business, at the time of the act, transaction, occurrence or
   35  event recorded therein, or within a reasonable time thereafter, and that
   36  it was the regular course of business to make such records.
   37    (b) A certification made in compliance with subdivision (a) is  admis-
   38  sible  as  to the matters set forth therein and as to such matters shall
   39  be presumed true. When more than one person has knowledge of the  facts,
   40  more than one certification may be made.
   41    (c)  A party intending to offer at a trial or hearing business records
   42  authenticated by certification subscribed pursuant to this  rule  shall,
   43  at  least  thirty  days before the trial or hearing, give notice of such
   44  intent and specify the place when  such  records  may  be  inspected  at
   45  reasonable  times. No later than ten days before the trial or hearing, a
   46  party upon whom such notice is served may object to the offer  of  busi-
   47  ness  records  by  certification  stating the grounds for the objection.
   48  Unless objection is made pursuant to this subdivision,  or  is  made  at
   49  trial  based  upon  evidence which could not have been discovered by the
   50  exercise of due diligence prior to  the  time  for  objection  otherwise
   51  required  by  this subdivision, business records certified in accordance
   52  with this rule shall be deemed to have  satisfied  the  requirements  of
   53  subdivision  (a)  of  rule  4518.  Notwithstanding  the issuance of such
   54  notice or objection to same, any party may  subpoena  the  custodian  to
   55  appear  and  testify  and  require  the  production of original business
   56  records at the trial or hearing.

       A. 6092                             4
 
    1    § 5. This act shall take effect on  the  first  day  of  January  next
    2  succeeding the date on which it shall have become a law.

 
BILL NUMBER: A6092
 
SPONSOR: Brennan (MS)

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the production of non-party business records
 
 
SUMMARY OF SPECIFIC PROVISIONS:  This bill would amend the CPLR
2305(b), 3120 and 3122, and add a new CPLR 3122-a. Its purpose is to
simplify methods for obtaining discovery of documents, particularly
routine business records, from non-party witnesses and procuring their
admission into evidence. By doing so it should alleviate burdens upon
the litigants, non-party witnesses and the courts.
 
The change in this measure, inspired in a general way by the Federal
Rules of civil procedure and the civil practice laws of California and
Kansas, were originally proposed by the Commercial and Federal Liti-
gation Section of the NYS Bar Association. They eliminate the require-
ment under CPLR 3120(b) that, in the absence of a non-party deposition,
a party must obtain a court order before being permitted to undertake
discovery and inspection of non-party documents or things. Henceforth, a
Subpoena  
DUCES TECUM, issued by an attorney or the court clerk (if the
party is  
PRO SE), will suffice.
 
These changes will end the unauthorized but longstanding practice of
serving a non-party with a subpoena for a deposition, followed by the
making of an informal suggestion that the witness can avoid appearing at
the deposition by mailing copies of the documents described in the
subpoena to the attorney serving the subpoena. This practice carries
with it a risk of confusion and worse.  (See  
MATTER OF BEINY, A.D.2d
126 (1st Dept. 1987)). Under this measure, a party issuing a discovery
subpoena must, at the same time, serve a copy upon all other parties,
who will have standing to move to quash it. A non-party receiving such a
subpoena is authorized to make written objection to all or part of the
discovery demand, as parties now do under CPLR 3122, which is a consid-
erably less burdensome alternative to the motion to quash. Furthermore,
the non-party can demand reimbursement of reasonable production
expenses, mirroring CPLR 3111, and may withhold such production until
the expenses are paid or the issue is otherwise resolved by the court.
 
Both parties and non-parties will be required to produce "documents or
things" as they are kept in the regular course of business, or organized
and labeled to correspond with the categories listed in the notice or
subpoena  
DUCES TECUM.ct.
 
As to a subpoena  
DUCES TECUM seeking business documents served upon a
non-party, the proposed amendments provide two avenues for production.
The subpoena may require either that the non-party produce original
documents at the non-party's place of business or that copies be deliv-
ered to the seeking party (if  
PRO SE) or his or her attorney without
the need for an appearance by any witness. This will ensure the integri-
ty of the non-party production and avoid corruption of the original
records, as well as guarantee a non-party the uninterrupted use of
recourse that may be necessary for normal business operations. The seek-
ing party is required to give to all other parties notice of the non-
party's compliance with the discovery subpoena, after which they will
have a corresponding opportunity to inspect the production made by the
non-party. It is anticipated that such changes will greatly reduce the
Inconvenience presently suffered by non-party witnesses, who often are
 
made to appear at an unnecessary deposition, possible at a distant
location, with their original records in tow.
 
Where copies of non-party business records are delivered pursuant to a
discovery subpoena, the non-party also will be required to sign a sworn
certification attesting to the fact that the documents being produced
are correct copies of "business records" prepared in accordance with the
evidentiary standards set forth in CPLR 4518(a).  This certification
will qualify the non-party business records for admission at trial as
such, in a manner similar to that now authorized for hospital records by
CPLR 2306; and, where given, the personal appearance of a non-party to
lay a foundation for the admission will not be necessary. This procedure
should be particularly useful for introduction of routinely-prepared
business records and other documents, such as utility, telephone and
bank records, statements and invoices. Any party intending to seek
admission of certified records is required to give ample notice.
Adverse parties would have the right to object to the proposed use of
certified business records and, in any event, would retain their present
right to object.
 
While the right to command the appearance of a non-party witness at a
deposition or trial, as well as the right to subpoena original records
for those purposes, is not changed, prudent use of the new rules should
reduce the need to require a non-party's appearance at the deposition or
trial. To discourage reflexive demands that a custodian be produced to
authenticate noncontroversial business records despite the availability
of a certification of authenticity, this measure includes a provision
for the imposition of costs against a party who has needlessly required
the personal appearance of a non-party to authenticate business records.
This penalty Is similar to the remedy prescribed by CPLR 3123(c) with
regard to a party who unreasonably denies a request for admission.
 
Enactment of this measure should substantially reduce the inconvenience
imposed upon non-party witnesses with no adverse impact upon the quality
of the evidence produced in disclosure or put into the record at trial.
 
 
PRIOR LEGISLATIVE HISTORY:  A.8544-c of 2000 - Passed Assembly.
 
 
FISCAL IMPLICATIONS TO STATE AND LOCAL GOVERNMENTS:  None.
 
 
EFFECTIVE DATE: January 1 after enactment.