Enforcement of an out of state subpoena and the Court’s ability to quash.
3102 Method of obtaining disclosure
3103 Protective orders
Matter of Trump v Sulzberger, 2008 NY Slip Op 51810(U) (Supreme Court, New York County).
Here, Trump made a motion in New Jersey for "non-party out-of-state depositions of three executives of The Times" and the motion was granted by Judge Kassel.
Addressing possible objections by the deponents or The Times, Judge
Kassel ruled that as non-parties, their objections would have to be
raised in New York after the subpoenas were served, and that he was
only "looking at whether or not the defendants are prejudiced." Judge
Kassal concluded that "[t]he bottom line is this, and I can’t give a
better reason, other than the fact that my sense that it’s not a wild
goose chase. . . . I’m going to permit the depositions, at least from
New Jersey’s end."
Well, what about New York’s end? Here’s where it gets interesting.
On March 19, 2008, Trump filed an ex parte application in the Supreme
Court of the County of New York, for an order pursuant to CPLR 3201(e)
authorizing New York service of subpoenas ad testificandum and duces
tecum on Sulzberger, Keller and Ingrassia. On that same day, the Hon.
William J. Davis issued an ex parte order granting the application, and
directing Sulzberger, Keller and Ingrassia to appear for depositions,
and to produce the demanded documents. Sulzberger and Keller [FN4]
are now moving to quash the subpoenas, arguing that they impose an
unreasonable burden on senior executives of a non-party who have no
direct knowledge of the facts in the dispute, and that the "tangential
information" sought from these witnesses is not legitimately needed in
the New Jersey action.
CPLR 3102(e) provides that when a court in another state issues a
mandate or commission requiring testimony by a New York witness, the
witness "may be compelled to appear and testify in the same manner and
by the same process as may be employed for the purpose of taking
testimony in actions pending in the state." CPLR 3102(e). Under section
3102(e), a New York court can order the testimony of a witness or
compel the production of documents in aid of an action pending outside
the state. The purpose of CPLR 3102(e) is to make available the
mechanism of New York courts to secure disclosure from persons subject
to New York jurisdiction for use in an action in any other
jurisdiction. See Kirkland & Ellis v. Chadbourne & Parke LLP,
176 Misc 2d 73, 76-77 (Sup Ct, NY Co 1998); 7B McKinney’s §3102,
Commentary C3102:9 at 500-500. "It is appropriate for the Sister State
court which has the underlying case, and is therefore in a better
position to determine the appropriate scope of disclosure, to make the
threshold determination as to whether to permit the discovery. The New [*4]York court’s role is necessarily more limited." Matter of Welch, 183 Misc 2d 890, 891 (Sup Ct, NY Co 2000).
If the court in another state permits the discovery, the New York
"court’s inquiry with respect to objections raised by persons required
to testify pursuant to CPLR 3102(e) is limited to determining (1)
whether the witnesses’ fundamental rights are preserved; (2) whether
the scope of inquiry falls within the issues of the pending
out-of-state action; and (3) whether the examination is fair." Matter of Ayliffe & Cos, 166 AD2d 223, 224 (1st Dept 1990), lv app den 76 NY2d 714 (1990) (citing Matter of Brandes v. Harris,
78 AD2d 638, 639 [2nd Dept 1980]). "The courts will not prejudge the
materiality or the competency of the evidence in a cause pending in
another jurisdiction and will afford the widest possible latitude in
the conduct of such examinations.’" Id (quoting Matter of Roberts, 214 AD 271, 275 [1st Dept 1925]).
Notwithstanding the foregoing, New York courts retain
discretionary authority under CPLR 3103(a) to issue a protective order
or to quash a subpoena issued pursuant to CPLR 3102(e), due to over
breadth or to prevent unnecessary harassment, see Matter of Dier, 297 AD2d 577 (1st Dept 2002), Law Office of Paul A. Lange v. Roman Catholic Diocese of Dallas, 245 AD2d 118, 119 (1st Dept 1997), due to an independent determination that the material sought is not critical or necessary, see Brown & Williamson Tobacco Corp. v. Wigand,
228 AD2d 187 (1st Dept 1996), app withdrawn 90 NY2d 901 (1997), or due
to the inclusion of material protected by the attorney-client
privilege, see Bombadier Capital Inc. v. Schoengold Sporn Laitman & Lometti P.C., 46 AD3d 323 (1st Dept 2007), Kirkland & Ellis v. Chadbourne & Parke, supra.
These cases require this court to exercise its discretion and review
the subpoenas under the standards enumerated above, rather than simply
"rubber stamping" the determination of the New Jersey court. See id at 77.
All the bold is mine.
In the end, the Court, after taking several factors into account, decided to quash one subpoena and limit the scope of the discovery requested as to the other.
In short, CPLR § 3102(e) allows New York courts to enforce discovery ordered by a court in a different state, it has the ability to issue a protective order pursuant to CPLR § 3103(a) under a limited set of circumstances.