New York Motion to Quash a Subpoena

Introduction

Key Things to Know

1. 1

   New York's own rule is CPLR 2304, Motion to quash, fix conditions or modify: the motion must be made promptly in the court in which the subpoena is returnable. There is no fixed day count.

2. 2

   Do not simply ignore a subpoena. The CPLR provides written objections for a notice or subpoena duces tecum under CPLR 3120 or 3121 (CPLR 3122(a)(1)) and a motion to quash, fix conditions or modify (CPLR 2304).

3. 3

   For a notice or subpoena duces tecum under CPLR 3120 or 3121, written objections are due within twenty days of service and must state with reasonable particularity the reasons for each objection (CPLR 3122(a)(1)). This is separate from a motion under CPLR 2304.

4. 4

   For a subpoena duces tecum under CPLR 3120, the return date must be at least twenty days after service (CPLR 3120(a)(2)).

5. 5

   If the subpoena is not returnable in a court, such as an attorney-issued subpoena, you must first ask the issuer to withdraw or modify it, then move in the Supreme Court. For a child support subpoena that is not returnable in a court, the motion may go to Family Court or Supreme Court (CPLR 2304).

6. 6

   A copy of a subpoena duces tecum served in a pending civil judicial proceeding must be served on each party who has appeared, promptly and before production, and the witness must be tendered travel expenses and one day's witness fee (CPLR 2303(a)). CPLR 3122(a)(2) separately addresses medical-records subpoenas, providing that a medical provider need not respond without the patient's written authorization; read the full rule for any conditions or exceptions.

7. 7

   For a subpoena from another state, CPLR 3119 (UIDDA) applies: the county clerk where discovery is sought issues a New York subpoena, and motions to quash, modify or for a protective order go to the court in that county. CPLR 3119(g) restricts subpoenas about out-of-state legally protected health activity.

New York Requirements for Motion to Quash

• CPLR 2304 Motion Made Promptly

  A motion to quash, fix conditions or modify a subpoena must be made promptly in the court in which the subpoena is returnable (CPLR 2304). The rule sets no fixed day count.

• Written Objections Within 20 Days

  Within twenty days of service of a notice or subpoena duces tecum under CPLR 3120 or 3121, the person to whom it is directed, if they object, must serve a response stating with reasonable particularity the reasons for each objection (CPLR 3122(a)(1)).

• Minimum 20-Day Return Time

  For a subpoena duces tecum under CPLR 3120, the return date must be at least twenty days after service (CPLR 3120(a)(2)).

• Request to Issuer Before Moving

  If the subpoena is not returnable in a court, such as an attorney-issued subpoena, a request to withdraw or modify it must first be made to the issuer, and a motion then goes to the Supreme Court, or for a child support subpoena, to Family Court or Supreme Court (CPLR 2304).

• Copy to Appearing Parties

  A copy of any subpoena duces tecum in a pending civil judicial proceeding must be served on each party who has appeared, promptly and before production, and the witness must be tendered travel expenses and one day's witness fee (CPLR 2303(a)).

• Medical Provider Authorization Rule

  CPLR 3122(a)(2) provides that a medical provider need not respond to a records subpoena without the patient's written authorization. Check the full rule for any conditions or exceptions.

• Out-of-State Subpoenas Under CPLR 3119

  The county clerk in the county where discovery is sought issues the New York subpoena, and motions to quash, modify or for a protective order go to the court in that county. CPLR 3119(g) restricts subpoenas about out-of-state legally protected health activity.

• Relief Requested in the Motion

  The motion should ask the court to quash, fix conditions or modify the subpoena, the three forms of relief CPLR 2304 authorizes.