STATE OF NEW YORK
       ________________________________________________________________________
 
                                        3539--C
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    March 14, 2001
                                      ___________
 
       Introduced by Sen. VOLKER -- (at request of the Judiciary) -- read twice
         and ordered printed, and when printed to be committed to the Committee
         on  Codes  -- recommitted to the Committee on Codes in accordance with
         Senate Rule 6, sec. 8 -- committee discharged, bill  amended,  ordered
         reprinted  as  amended  and recommitted to said committee -- committee
         discharged, bill amended, ordered reprinted as amended and recommitted
         to said committee  --  committee  discharged,  bill  amended,  ordered
         reprinted as amended and recommitted to said committee
 
       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. Rule 3120 of the civil practice law and rules, subdivision (a) as
   11  amended  by  chapter 98 of the laws of 1993 and subdivision (b) as added
   12  by judicial conference proposal number 2 for the year 1966,  is  amended
   13  to read as follows:
   14    Rule  3120.  Discovery  and  production  of  documents  and things for
   15  inspection, testing, copying or photographing.
   16    [(a) As against party:]
   17    1. After commencement of an action, any party may serve on  any  other
   18  party a notice or on any other person a subpoena duces tecum:
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09782-08-2

       S. 3539--C                          2
 
    1    (i)  to  produce  and  permit  the party seeking discovery, or someone
    2  acting on his or her behalf, to inspect, copy, test  or  photograph  any
    3  designated  documents or any things which are in the possession, custody
    4  or control of the party or person served; or
    5    (ii)  to  permit  entry  upon designated land or other property in the
    6  possession, custody or control of the party or  person  served  for  the
    7  purpose  of  inspecting, measuring, surveying, sampling, testing, photo-
    8  graphing or recording by motion pictures or otherwise  the  property  or
    9  any specifically designated object or operation thereon.
   10    2.  The  notice  or subpoena duces tecum shall specify the time, which
   11  shall be not less than twenty  days  after  service  of  the  notice  or
   12  subpoena,  and the place and manner of making the inspection, copy, test
   13  or photograph, or of the entry upon the land or other property  and,  in
   14  the  case of an inspection, copying, testing or photographing, shall set
   15  forth the items to be inspected, copied, tested or photographed by indi-
   16  vidual item or by category, and shall describe each  item  and  category
   17  with reasonable particularity.
   18    [(b)  As  against  non-party.  A person not a party may be directed by
   19  order to do whatever a party may be directed  to  do  under  subdivision
   20  (a).  The  motion  for  such  order  shall  be  on notice to all adverse
   21  parties; the non-party shall be served with the notice of motion in  the
   22  same  manner  as a summons. The order shall contain, in addition to such
   23  specifications as the notice is required to contain under paragraph  two
   24  of  subdivision  (a), provision for the defraying of the expenses of the
   25  non-party.]
   26    3. The party issuing a subpoena duces tecum  as  provided  hereinabove
   27  shall  at  the  same  time  serve  a copy of the subpoena upon all other
   28  parties and, within five days of compliance therewith, in  whole  or  in
   29  part,  give  to  each  party  notice that the items produced in response
   30  thereto are available for inspection and copying,  specifying  the  time
   31  and place thereof.
   32    4.  Nothing contained in this section shall be construed to change the
   33  requirement of section 2307 that a subpoena duces  tecum  to  be  served
   34  upon  a library or a department or bureau of a municipal corporation, or
   35  of the state, or an officer thereof, requires a motion made on notice to
   36  the library, department, bureau or officer, and the adverse party, to  a
   37  justice of the supreme court or a judge of the court in which the action
   38  is triable.
   39    §  3.  Rule  3122  of  the civil practice law and rules, as amended by
   40  chapter 98 of the laws of 1993 and subdivision (c) as added  by  chapter
   41  295 of the laws of 1998, is amended to read as follows:
   42    Rule 3122. Objection to disclosure, inspection or examination; compli-
   43  ance.  (a)  Within  twenty days of service of a notice or subpoena duces
   44  tecum under rule 3120 or section 3121, the party or person to  whom  the
   45  notice  or  subpoena  duces  tecum  is directed, if that party or person
   46  objects to the disclosure, inspection  or  examination,  shall  serve  a
   47  response which shall state with reasonable particularity the reasons for
   48  each objection. If objection is made to part of an item or category, the
   49  part shall be specified. A medical provider served with a subpoena duces
   50  tecum  requesting the production of a patient's medical records pursuant
   51  to this rule need not respond or object to the subpoena if the  subpoena
   52  is  not  accompanied  by  a  written authorization by the patient.   Any
   53  subpoena served upon a medical provider requesting the  medical  records
   54  of a patient shall state in conspicuous bold-faced type that the records
   55  shall  not  be  provided unless the subpoena is accompanied by a written
   56  authorization by the patient. The party seeking  disclosure  under  rule

       S. 3539--C                          3
 
    1  3120  or  section  3121 may move for an order under rule 3124 or section
    2  2308 with respect to any objection to, or other failure to respond to or
    3  permit inspection as requested by, the notice or subpoena  duces  tecum,
    4  respectively, or any part thereof.
    5    (b)  Whenever a person is required pursuant to such a notice, subpoena
    6  duces tecum or order to produce documents for inspection, and where such
    7  person withholds one or more documents that  appear  to  be  within  the
    8  category  of  the documents required by the notice, subpoena duces tecum
    9  or order to be produced, such person shall  give  notice  to  the  party
   10  seeking  the production and inspection of the documents that one or more
   11  such documents are being withheld. This notice shall indicate the  legal
   12  ground for withholding each such document, and shall provide the follow-
   13  ing  information  as to each such document, unless the party withholding
   14  the document states that divulgence  of  such  information  would  cause
   15  disclosure  of  the  allegedly privileged information:   (1) the type of
   16  document; (2) the general subject matter of the document; (3)  the  date
   17  of  the  document;  and  (4)  such other information as is sufficient to
   18  identify the document for a subpoena duces tecum.
   19    (c) Whenever a person is required pursuant to such notice or order  to
   20  produce documents for inspection, that person shall produce them as they
   21  are  kept  in the regular course of business or shall organize and label
   22  them to correspond to the categories in the request.
   23    (d) Unless the subpoena duces tecum directs the production of original
   24  documents for inspection and copying at the place where such  items  are
   25  usually  maintained,  it  shall be sufficient for the custodian or other
   26  qualified person to deliver complete and accurate copies of the items to
   27  be produced. The reasonable production expenses of a  non-party  witness
   28  shall be defrayed by the party seeking discovery.
   29    §  4. The civil practice law and rules is amended by adding a new rule
   30  3122-a to read as follows:
   31    Rule 3122-a. Certification of business records. (a)  Business  records
   32  produced  pursuant  to  a  subpoena duces tecum under rule 3120 shall be
   33  accompanied by a certification, sworn in the form of  an  affidavit  and
   34  subscribed  by  the  custodian  or  other qualified witness charged with
   35  responsibility of maintaining the records, stating in substance each  of
   36  the following:
   37    1.  The  affiant  is  the duly authorized custodian or other qualified
   38  witness and has authority to make the certification;
   39    2. To the best of the affiant's knowledge, after  reasonable  inquiry,
   40  the  records  or  copies  thereof are accurate versions of the documents
   41  described in the subpoena duces tecum that are in the possession, custo-
   42  dy, or control of the person receiving the subpoena;
   43    3. To the best of the affiant's knowledge, after  reasonable  inquiry,
   44  the  records or copies produced represent all the documents described in
   45  the subpoena duces tecum, or if they do not represent a complete set  of
   46  the  documents subpoenaed, an explanation of which documents are missing
   47  and a reason for their absence is provided; and
   48    4. The records or copies produced were made by the personnel or  staff
   49  of  the  business, or persons acting under their control, in the regular
   50  course of business, at the time of the act, transaction,  occurrence  or
   51  event recorded therein, or within a reasonable time thereafter, and that
   52  it was the regular course of business to make such records.
   53    (b)  A certification made in compliance with subdivision (a) is admis-
   54  sible as to the matters set forth therein and as to such  matters  shall
   55  be  presumed true. When more than one person has knowledge of the facts,
   56  more than one certification may be made.

       S. 3539--C                          4
 
    1    (c) A party intending to offer at a trial or hearing business  records
    2  authenticated  by  certification subscribed pursuant to this rule shall,
    3  at least thirty days before the trial or hearing, give  notice  of  such
    4  intent  and  specify  the  place  where such records may be inspected at
    5  reasonable  times. No later than ten days before the trial or hearing, a
    6  party upon whom such notice is served may object to the offer  of  busi-
    7  ness  records  by  certification  stating the grounds for the objection.
    8  Such objection may be asserted in any instance and shall not be  subject
    9  to  imposition  of  any  penalty or sanction.   Unless objection is made
   10  pursuant to this subdivision, or is made at trial  based  upon  evidence
   11  which  could  not  have been discovered by the exercise of due diligence
   12  prior to the time for objection otherwise required by this  subdivision,
   13  business  records certified in accordance with this rule shall be deemed
   14  to have satisfied the requirements of  subdivision  (a)  of  rule  4518.
   15  Notwithstanding  the  issuance  of  such  notice or objection to same, a
   16  party may subpoena the custodian to appear and testify and  require  the
   17  production of original business records at the trial or hearing.
   18    §  5.  This  act  shall take effect on the first day of September next
   19  succeeding the date on which it shall have become a law.