By Hon. Mark C. Dillon
Justice of the Appellate Division, Second Department
Adjunct Professor of New York Practice at Fordham School of Law
A monthly column with a focus on matters of practice and procedure.
Reprinted with permission from the Westchester Lawyer magazine, January 2019, Vol. 6, No. 1
Obtaining Out-of-State Witnesses and Documents
Subpoenas duces tecum and ad testificandum cannot be served upon non-parties who are out of state (Judiciary Law 2-b). Doing so, where there is no jurisdictional predicate over the non-parties, renders such subpoenas void and unenforceable (Peterson v. Spartan Industries, Inc., 40 A.D.2d 807 [1st Dep't 1972], aff’d., 33 463 ). There are cases, conceivably, where out-of-state documents or witnesses are crucial to a party’s claim or defense. What is an attorney to do if non-party materials or witnesses, which are out of reach under the normal subpoena processes, are needed by a party to establish claims or defenses via summary judgment or at trial? The answer lies in either CPLR 3108 or the Uniform Interstate Deposition and Discovery Act (“UIDDA”), depending on the state where the non-party documents or witnesses are located.
CPLR 3108, which has been on the books since 1962, permits a New York court to execute a “commission” reflecting an official seal, requesting that it be honored by an out-of-state court. The commission, when presented to the out-of-state court, should result, as a matter of comity, in the execution by the foreign court of a subpoena that would be served and enforceable in the foreign state. If the subpoena seeks non-party documents, the responsive records may be transmitted directly to counsel in the normal course. If the subpoena is for either pre-trial deposition or trial testimony of a non-party witness, the testimony is to be taken within the foreign state. While CPLR 3117(a)(3) permits reading the transcript at trial, Uniform Rule 202.15 and CPLR 3113(b) also permit its videotaping for use in accordance with that statute.
New York courts will not issue commissions under CPLR 3108 merely upon request. The party seeking the commission must meet a two-part test. First, the party must show that the foreign state witness or document custodian will not cooperate with a discovery notice and will not otherwise voluntarily come to New York to participate in the pre-trial discovery or trial (Susan A. v. Steven J.A., 141 A.D.2d 790, 791 [2d Dep’t 1988]). The second test is to show that the non-party document or testimony is material or necessary to the party’s claim or defense (Mifsud v. City of New York, 208 A.D.2d 701, 702 [2d Dep’t 1994]).
The commission procedure of CPLR 3108 can sometimes be too time-consuming, particularly when there is a fast-approaching trial date, as it is layered with two different courts, a process server, and a non-party responder. New York adopted the streamlined procedures of the UIDDA in 2011, as embodied in CPLR 3119. Under the UIDDA, the party seeking out-of-state documents or deposition testimony may present a validly-executed New York subpoena to the clerk of the county in the foreign state where the discovery or testimony is sought. The clerk is to ministerially and promptly issue a parallel foreign state subpoena for service upon the person to whom it is directed.
The language of the UIDDA does not speak to trial testimony, but only discovery. The subpoena is to be served, and any discovery issues resolved, under the laws of the foreign state (UIDDA secs. 4, 5, and 6). While attorneys in out-of-state actions may utilize CPLR 3119 to obtain records or deposition testimony from non-party New Yorkers, New York attorneys may only use the UIDDA in the 38 other states that have adopted it so far (Uniform Law Commission).
Attorneys who wish to use the UIDDA must first determine that the foreign state has adopted it, and if so, carefully follow the language of the version adopted by that foreign state. Otherwise, attorneys must use the more cumbersome commission procedure of CPLR 3108.
CPLR 3108 and the UIDDA are not needed if out-of-state document custodians or witnesses are cooperative. But since the acquisition of documents or testimony is sometimes crucial from uncooperative sources, and the time elements of CPLR 3108 or the UIDDA are controlled by others, attorneys should utilize the available procedures as soon as practically possible in litigations.