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A motion on notice was required by former CPLR 3120 (b) to obtain nonparty document discovery ( see Wilson v.

Prior to 2003, although a nonparty witness could be deposed simply by service of a subpoena with the requisite notice of the circumstances or reasons why such disclosure was sought, a subpoena duces tecum requiring production of documents to be used in conjunction with such deposition was not sufficient.

Nevertheless, simple as those differences may seem, there apparently is nothing to prevent a nonparty served with an excessively overbroad CPLR 3120 subpoena or a party affected by such subpoena from moving for a protective order pursuant to CPLR 3103 ( see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3103:3). In such case, the burden then falls upon the party serving the subpoena to move pursuant to CPLR 3124 or 2308 (b) to compel compliance with the subpoena. However, a nonparty served with a CPLR 3120 subpoena is required to object in writing within 20 days, stating 'with reasonable particularity the reasons for each objection' (CPLR 3122 ).

CPLR 3103 provides for a protective order that can be used to limit, condition or regulate the disclosure device used, while CPLR 2304 provides for a motion to quash, fix conditions or modify a subpoena.

If the party seeking the disclosure is not interested in taking a deposition, but merely wants a nonparty witness to produce for discovery and inspection a paper or other tangible item in his or her possession, the remedy is an outright subpoena under CPLR 3120 ( see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3111:1). Where production of 'books, papers and other things' is also sought in conjunction with his or her deposition, a notice or subpoena pursuant to CPLR 3111 is the appropriate device, and the party serving the subpoena should describe the items sought and be certain to make the subpoena unambiguous, requiring both attendance by the recipient and production of the item. Thus, where the person to be deposed is not a party, he or she must be served with a subpoena issued pursuant to CPLR 3106 (b).

For disclosure purposes, a party is distinguished from a nonparty and where disclosure is sought against a nonparty more stringent requirements are imposed on the party seeking disclosure ( see Connors, Practice Commentaries, CPLR C3101:19).

House of velez part 2 no commentary how to#

The purpose of such requirement is presumably to afford a nonparty who has no idea of the parties' dispute or a party affected by such request an opportunity to decide how to respond. Nothing in the amendments to CPLR 3120, however, dispenses with the general requirement of CPLR 3101 (a) (4) that, where disclosure is sought from a nonparty, the nonparty shall be given notice stating the circumstances or reasons such disclosure is sought or required. The amendments dispense with the requirement of a motion and now simply require service of a subpoena duces tecum on a nonparty witness for production of any designated documents in the possession, custody or control of the nonparty served, specifying the time, place and manner of making the inspection, copy, test or photograph, and setting forth individually or by category the items to be inspected and describing each item and category with reasonable particularity.

In order to simplify the methods for obtaining discovery of documents, particularly routine business records, from nonparty witnesses, with the consequent effect of alleviating the burden upon the litigants, the nonparty witnesses and the courts, CPLR 3120 was amended, effective Septem(L 2002, ch 575, § 2).'Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed' ( Gertz v. Varda, Inc., 261 AD2d 135 Matter of Reuters Ltd. It is equally well settled that a motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry ( see New Hampshire Ins.

It is well settled that the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding ( see Matter of Terry D., 81 NY2d 1042, 1044).