Interstate Discovery Made Easier In New York
New York has adopted the Uniform Interstate Deposition and Discovery Act making it easier to obtain discovery of documents and depositions in New York for use in court actions in other states.
The new rule CPLR 3119 permits a non-New York litigant to obtain discovery in New York without a commission within their state and does not require a New York proceeding to be commenced prior to issuance of a subpoena.
To issue a subpoena there is no requirement to involve the courts at all
The out-of-state party retains a New York attorney and provides them the out-of-state subpoena. The New York attorney then issues a New York subpoena seeking the discovery sought within New York.
The subpoena once issued follows New York’s procedural rules. (1) 20 days notice (2) deposition held where the witness resides or works, (3) right to object (4) right to move in NY Court for protective order or to quash or modify the subpoena.
The party issuing the subpoena moves in the New York Court and county where discovery is sought to compel compliance with the subpoena
Under the old law (which still may be used) CPLR 3102(e), required a court order, before a subpoena could be issued. The out-of-state party obtained a commission from the out-of-state court and, based on that commission, commenced a special proceeding in the New York state courts and filed a formal application for a court order. They had the burden of establishing the scope and need for discovery and upon judicial approval of a proposed order and proposed subpoena.
The new law eliminates the costs and delay required under the old law. Now a New York Attorney serving as local counsel can take immediate steps to aid you in pursuing discovery in New York.
