From the New York Law Journal
February 22, 2011
“CPLR §3119, a newly enacted provision of the CPLR, effective Jan. 1, 2011, holds the promise to make it substantially easier to seek discovery in New York for cases pending outside of New York.”
This new rule will make it easier to issue a subpoena for discovery (including documents and depositions) in New York for use in a court action in another state.
Prior to the new rule, a party to litigation in another state that wished to issue a subpoena to a witness in New York had to rely on CPLR 3102(e), which required a number of steps, including a court order, before a subpoena could be issued.
CPLR 3119 simplifies the process for issuing a subpoena in New York for an out-of-state action by eliminating the need to commence a formal proceeding and obtain a court order. The rule offers two options. For the first option, an out-of-state subpoena (a subpoena issued under the authority of another state court) may be submitted to the clerk of the New York state court in the county where the discovery will take place. The clerk, “in accordance with that court’s procedure,” then must promptly issue a New York state subpoena for service on the person to whom the out-of-state subpoena is directed. The subpoena must incorporate the terms of the out-of-state subpoena and contain the names, addresses and telephone numbers of all counsel of record and any party not represented by counsel The out of state attorney should submit the proposed New York subpoena in addition to the out-of-state subpoena. Each document needs to mirror the other in content in addition the court has required that the NY subpoena include a reference to the originating court of the out of state subpoena.