Non-Party Subpoenas [Ct. App.]

CPLR 3119

CPLR 3101

CPLR 2304

CPLR 3103

Matter of Kapon v Koch, 2014 NY Slip Op 02327 [2014]

The Second and Third Departments, while acknowledging that the "special circumstances" requirement no longer applies, nonetheless require the party seeking discovery to meet the "material and necessary" standard and more. Specifically, in those departments, a motion to quash a subpoena will be granted if "the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty, and properly denied when the party has shown that the evidence cannot be obtained from other sources" (Kooper v Kooper, 74 AD3d 6, 16-17 [2d Dept 2010] [citations omitted]; see American Heritage Realty LLC v Strathmore Ins. Co., 101 AD3d 1522, 1524 [3d Dept 2012]; Cotton v Cotton, 91 AD3d 697, 699 [2d Dept 2012]).

We conclude that the "material and necessary" standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this State's policy of liberal discovery. The words "material and necessary" as used in section 3101 must "be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406 [1968]). Section 3101 (a) (4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.

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