Proposal to Amend CPLR 2303
(Revised 1/25/01)

AN ACT to amend the civil practice law and rules in relation to the service of a subpoena.

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Subdivision (a) of section 2303 of the civil practice law and rules is amended to read as follows:

Service of subpoena; payment of fees in advance.

    (a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the later of the delivering or mailing of the subpoena, if made pursuant to subdivision two of section three hundred eight of this chapter, or upon the later of the affixing or mailing of the subpoena, if made pursuant to subdivision four of section three hundred eight of this chapter. Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day`s witness fee. A copy of any subpoena  served  in a pending action shall also be served on each party who has appeared in the action in the manner set forth in section 2103 of this chapter so that it is received by such parties promptly after service on the witness and  before the attendance of the witness or production of books, papers or other things.

§2.   This act shall take effect on the first day of January after it shall have become a law.

Supporting Memorandum

        This proposal is designed 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 on the other parties to the action.

        It is a fundamental rule that where “discovery is conducted as against a nonparty, adverse parties must be afforded notice.” Matter of Beiny, 129 A.D.2d 126, 131, 517 N.Y.S.2d 474, 477  (1st Dep’t 1987).  Under CPLR 2303, as presently written, however, a trial subpoena 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 Courthouse, the issuing attorney may view the subpoenaed items ex parte. This practice allows the issuing attorney to obtain documents that were not sought during the discovery stage, 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.  An equally inappropriate practice is the issuance of subpoenas to retained experts in the case. Because such subpoenas 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 pre-trial 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 service of subpoenas will allow disputes regarding the subpoenaed material 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 of the 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 called upon to testify or produce documents.

        The proposal extends to subpoenas served in connection with non-party 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 the subpoena required under CPLR 3106(b) also be served on the parties.   Since information contained within the subpoena 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 subpoenas issued in aid of the enforcement of a judgment), as "service of a CPLR 5224 subpeona does not commence a special proceeding." D. Siegal, New  York Practice, § 509 at 927 [3d ed.].