On May 7th I posted a case where the Appellate Division, Second Department found that a parties non-party subpoenas were proper. Today, in an unusually long decision, the same court came to a different conclusion. It's a long decision. Read it anyway.
Kooper v Kooper, 2010 NY Slip Op 04147 (App. Div., 2nd, 2010)
On this appeal we consider principles governing the discovery of
documents from nonparties pursuant to CPLR 3101(a)(4), which provides
that the party seeking disclosure must give notice stating "the
circumstances or reasons such disclosure is sought or required" from the
nonparty. Specifically, the question arises whether a party must
establish the existence of "special circumstances" warranting discovery
from a nonparty in order to successfully oppose a motion to quash a
subpoena duces tecum served on that nonparty. Many of our cases
continued to apply that standard after CPLR 3101(a)(4) was amended to
remove the requirement that discovery from a nonparty be obtained only
"where the court on motion determines that there are adequate special
circumstances." We hereby disapprove the further application of the
"special circumstances" standard in this context. We, nevertheless, look
behind that language in our cases and find underlying considerations
which are appropriate and relevant to the trial court's exercise of its
discretion in determining whether a request for discovery from a
nonparty should go forward or be quashed. Here, the Supreme Court
providently exercised its discretion in granting the plaintiff's motion
to quash the subpoenas at issue.
The bold is mine.
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