Relates to disclosure in New York state in an action pending in another jurisdiction

In 2008, on the advice of our Advisory Committee, we recommended amend- ing the CPLR to adopt the Uniform Interstate Depositions and Discovery Act (" Act") as promulgated by the National Conference of Commissioners of Uniform State Laws in 2007. The Act sets forth an efficient and inexpensive procedure for litigants to depose out-of-state individuals and for the production of discoverable materials that may be located outside the trial state. In 2009, we again endorse New York's adoption of the Act. This year, however, we amend our proposal by (1) adding a subparagraph (b)(4) to CPLR section 3119 to ensure that the law is clear regarding the ability of an attorney, licensed to practice in this state and retained by a party to an out-of-state-proceeding, to issue a subpoena under this Act and (2) adding a reference to CPLR Article 23 in proposed new section 3119(b)(2) and a reference to CPLR Article 31 in proposed new section 3119(d) to make it explicit that these articles apply to this Act.

Under the Act, litigants can submit to the county clerk of the county, located in the state where discoverable materials or individuals are sought, a subpoena issued under the authority of a court in the trial state. Once the discovery state clerk receives the out-of-state subpoe- na, the clerk will issue a subpoena for service upon the person or enti- ty to which the original subpoena is directed. The terms of the subpoena issued in the discovery state must incorporate the same terms as the original subpoena and contain the contact information for all counsel of record and any party not represented by counsel.

The Act requires minimal judicial oversight since there is no need to present the matter to a judge in the discovery state before a subpoena is issued. The procedure set forth is inexpensive because it eliminates the need to obtain a commission or local counsel in the discovery state or letters rogatory, or to file a miscellaneous action during the discovery phase of litigation.

Under the Act, discovery authorized by the subpoena must comply with the rules of state in which it occurs. Furthermore, motions to quash, enforce, or modify a subpoena issued pursuant to the Act shall be brought in and governed by the rules in the discovery state. The county clerk in the discovery state acts in a purely ministerial role, but in a manner that is sufficient to invoke jurisdiction of the discovery state over the deponent. The Act recognizes that the discovery state has a significant interest in protecting its residents who become non-party

witnesses in an action pending in another jurisdiction from unreasonable or burdensome discovery requests.

In particular, this measure adds a new section 3119 to the CPLR, and appropriately references sections of the CPLR where particularly appli- cable. Notably, under subdivision (a) the term "subpoena" includes a subpoena duces tecum, and does not include a subpoena for inspection of a person. We recognize that medical examinations in a personal injury case, for example, are separately controlled by existing discovery rules. Since the plaintiff is already subject to the jurisdiction of the trial state, a subpoena for his or her examination should never be necessary. Further, the term "court of record" is intended to exclude non-court of record proceedings to avoid expansion to arbitration proceedings. Also, the term "submit" to a county clerk is intended to include delivering to or filing. Submitting a subpoena to the clerk in the discovery state, so that a subpoena is then issued in the name of the discovery state, is the necessary act that invokes the jurisdiction of the discovery state, which in turn makes the newly issued subpoena both enforceable and challengeable in the discovery state.

This measure will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction (in contrast with CPLR 3108). The Act does, howev- er, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. Finally, this measure modifies existing section 3102(e), which currently governs compelling a witness found in New York to give testimony for use in a foreign jurisdiction, since the Act supersedes that section with respect to actions pending in another state, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and certain other territories subject to U.S. jurisdiction.

This measure, which would have no fiscal impact on the State, would take effect on the first day of January next succeeding the date on which it shall have become a law and apply to requests for discovery in cases pending on or after such effective date.

2008 LEGISLATIVE HISTORY: OCA 2008-101 Senate 7572 (Sen. Volker) [Codes]