If a company in New York State receives a
subpoena demanding documents - also known as a "subpoena duces tecum" - in
a lawsuit to which the company is not a party, the company
should, among other actions:
In Latin, subpoena means "under penalty." A
subpoena is a court process by which a non-party witness is made
subject to the jurisdiction of the court and required to produce
relevant materials or give relevant information.
A subpoena duces tecum demands papers or things
instead of testimony. It is served by a party to the lawsuit on the
person who has possession or control of the items. A subpoena duces tecum
is complied with if the items are produced at the specified time and
place, either by the person served or by another person familiar with
A subpoena must be served in the same manner as a
summons. So, if a company in New York receives a subpoena duces tecum, it
should ascertain whether the subpoena was served on it by one of the methods set
forth in N.Y. C.P.L.R. 308.
Instead of moving for a protective order, a
non-party entity objecting to a subpoena duces tecum may
sinply serve on the demanding party a response stating the reasons
for each objection "with reasonable particularity." Objections to the
subpoena duces tecum must be made within 20 days of receipt of the
demand. As a result, the great benefit of being able simply to
make an objection instead of having to move for a protective order can be lost
by not timely making the objection.
N.Y. C.P.L.R. 3122(a) requires that a non-party
company which objects to a subpoena duces tecum "shall serve a response
which shall state with reasonable particularity the reasons for each
objection." It is risky not to state all colorable grounds for
objecting to a demand, because a court probably will restrict the company
asserting objections to only the grounds stated.
If a part of an item or category set forth in the
subpoena duces tecum is objected to, N.Y. C.P.L.R. 3122(a) additionally
requires that the part be specified.
Whenever objection is made to producing documents
requested in a subpoena duces tecum, and the responding company withholds some
or all of the documents, N.Y. C.P.L.R. 3122(b) sets forth information that the
responding company must give about the withheld documents as part of its
response. In particular, the entity responding to the subpoena duces
tecum must identify:
If the responding company states that divulging the
above-mentioned information about the withheld document would cause disclosure
of the allegedly privileged information, then the company need not divulge that
Disobedience of a subpoena issued in a lawsuit is
punishable as a contempt of court. The non-party company disobeying the
subpoena may be held liable to the demanding party
for damages sustained by the demanding party because of the
company's failure to comply, and for a penalty not exceeding $150.
Any company in New York which receives a subpoena
demanding documents (in a lawsuit to which the company is not a
party) is strongly advised to contact a litigation attorney and to get
advice on how to proceed.
If your company wants to bring, or needs a lawyer to
defend it in, business litigation and you are located in the New York City
area, call Attorney David S. Rich at (212) 209-3972.
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