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:
- determine whether the subpoena was properly served on it;
- serve objection(s) within 20 days of receipt of the subpoena, unless a written stipulation is obtained extending the time to respond;
- identify whether all or part of the demand is improper, and if only a part or a portion is objected to, specify that part or portion, while responding to remainder of the demand;
- specify the bases for objection to item(s) being objected to;
- notify the demanding party if documents are being withheld; and
- identify, unless such identification would compromise a privilege, for each document withheld, the type of document, the general subject matter of the document, the date of the document, and such other information as is sufficient to identify the document.
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 them.
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:
- the type of document;
- the general subject matter of the document;
- the date of the document; and
- “such other information as is sufficient to identify the document for a subpoena duces tecum.”
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 information.
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.