STATE OF NEW YORK
       ________________________________________________________________________
 
           S. 6143                                                  A. 9695
 
                SENATE - ASSEMBLY
 
                                   January 22, 2002
                                      ___________
 
       IN  SENATE -- Introduced by Sen. VOLKER -- read twice and ordered print-
         ed, and when printed to be committed to the Committee on Codes
 
       IN ASSEMBLY -- Introduced by M. of A. WEPRIN -- read once  and  referred
         to the Committee on Codes
 
       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         service of a subpoena duces tecum
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Subdivision (a) of section 2303 of the civil practice law
    2  and rules, as amended by chapter 398 of the laws of 1997, is amended  to
    3  read as follows:
    4    (a) A subpoena requiring attendance or a subpoena duces tecum shall be
    5  served  in  the  same  manner as a summons, except that where service of
    6  such a subpoena is made pursuant to subdivision two or four  of  section
    7  three  hundred  eight  of  this  chapter, the filing of proof of service
    8  shall not be required and service shall  be  deemed  complete  upon  the
    9  later  of the delivering or mailing of the subpoena, if made pursuant to
   10  subdivision two of section three hundred eight of this chapter, or  upon
   11  the  later  of the affixing or mailing of the subpoena, if made pursuant
   12  to subdivision four of section three hundred eight of this chapter.  Any
   13  person  subpoenaed shall be paid or tendered in advance authorized trav-
   14  eling expenses and one day's witness fee.  A copy of any subpoena  duces
   15  tecum served in a pending action shall also be served, in the manner set
   16  forth  in  rule  twenty-one hundred three of this chapter, on each party
   17  who has appeared in the action so that it is received  by  such  parties
   18  promptly  after  service  on  the  witness  and before the production of
   19  books, papers or other things.
   20    § 2. This act shall take effect on  the  first  day  of  January  next
   21  succeeding the date on which it shall have become a law.
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD14415-02-2

 
BILL NUMBER: A9695
 
SPONSOR: Weprin

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the service of a subpoena duces tecum
 
 
PURPOSE:  To ensure fundamental fairness and due process in connection
with the issuance of a subpoena in a pending action by requiring service
of a copy of the subpoena duces tecum on the other parties to the
action.
 
 
SUMMARY OF PROVISIONS:  A copy of any subpoena duces tecum served in a
pending action shall also be served in the manner set forth in rule
twenty-one hundred three of this chapter, on each party who has appeared
in the action so that it is received by such parties promptly after
service on the witness and before the production of books, papers or
others things.
 
 
JUSTIFICATION:  This proposal is designed to ensure fundamental fair-
ness and due process in connection with the issuance of a subpoena in a
pending action by requiring service of a copy of the subpoena duces
tecum on the other parties to the action. As currently written, a trial
subpoena duces tecum may be issued and served without any notice to the
other parties whatsoever. In many counties, subpoenas duces tecum are
made returnable at a "records" room well in advance of a trial.  Once
delivered to the Court House, the issuing attorney may view the subpoe-
naed items ex parte. This quasi-discovery practice allows the issuing
attorney to obtain documents that were not sought during the discovery
state, either because there was no effort made to seek them at that
point or because the documents are such that a court may not permit
disclosure of them. Often, these subpoenas are directed to a party's
medical records, an employment file or other financial records. A
subpoena of such materials (medical, hospital or personnel records)
compels production even in the absence of a signed authorization. So
records relating to a party could be perused without giving the party an
opportunity to object to their production via subpoena. Because such
subpoenas duces tecum can be served with no notice to the opposing party
whatsoever, that party has no opportunity to seek judicial relief under
CPLR 2304 (motion to quash). Hence, there is an opportunity for serious
abuse.
 
The ability to make ex parte service of subpoena is also inconsistent
with the policy of liberal pretrial disclosure to all matters that will
"assist preparation for trial by sharpening the issues and reducing
delay and prolixity."   
ALLEN V. CROWELL-COLLIER PBG. CO., 21 N.Y.2d
403, 288 N.Y.S. 2d 449 (1968). Advance notice of the issuance of a
subpoenas duces tecum will allow disputes regarding the subpoenaed mate-
rial to be resolved in advance of the actual trial and allow the trial
to proceed more efficiently.
 
The service provision is designed to permit service of the copy by any
subpoena duces tecum by any means permitted under CPLR 2103, such as a
mail. Although service is not required on the parties in advance of
service on the witness, it is required promptly thereafter and in any
event, in such a manner as to be received before the witness is required
to produce the "books, documents or things" required by the subpoena.
 
The proposal extends to subpoenas duces tecum served in connection with
nonparty depositions during the discovery phase of the case pursuant to
CPLR 3106(b). Although CPLR 3107 requires service on the parties of the
deposition notice itself, there is no similar requirement that copies of
the subpoena duces tecum required under CPLR 3106(b) also be served on
the parties. Since information contained within the subpoena duces tecum
itself might not be contained within the deposition notice, the other
parties to the action should receive service of both the deposition
notice and the subpoena.
 
The provision would apply only to subpoenas served in a "pending action"
(or special proceeding  
§103(b)); it, therefore, would not apply to
subpoenas issued in a non-litigation context. The amendment also would
not govern subpoenas issued pursuant to CPLR 5224 (post-judgment subpoe-
nas issued in aid of the enforcement of a judgment), as "service of a
CPLR 5224 subpoena does not commence a special proceeding." D. Siegal,
New York Practice, §509 at 927  
3d ed..
 
 
LEGISLATIVE HISTORY:  New bill.
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  The first day of January next succeeding the date on
which it shall have become a law.