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After 30 Years of Confusion, the Court of Appeals Clarifies the Nonparty Subpoenas Standard


In New York, the standard for enforcing subpoenas on those who are not parties to a case has been anything but standard. Over the years, courts in the Appellate Division have applied different interpretations of CPLR 3101(a)(4). In a recent ruling, the New York Court of Appeals—the highest state court in New York—resolved this 30-year issue.

Before CPLR 3101(a)(4) was modified in 1984, it had higher requirements. If parties wanted to subpoena nonparties, they needed a court order showing “adequate special circumstances.” The current law requires “circumstances or reasons” but not a court order.

The confusion came from interpreting the “circumstances or reasons” requirement. The First and Fourth Departments applied a standard requiring that nonparty disclosure be relevant to the action. The Second and Third Departments required that the party show whether they could get the necessary information from a source other than the nonparty. If they could, and a motion to quash the subpoena was made, the Court would void the subpoena.

In RE: Kapon v. Koch, the Court of Appeals found that CPLR 3101(a)(4) does not require any of the extra steps used by the Second and Third Departments. Since New York has a history of liberal discovery policies, the Court held that the nonparty’s disclosure only needs to be relevant to the action. The First and Fourth Departments’ interpretation is the new standard.