Relates to business records of non-parties

BILL NUMBER:S7143

Title of bill

An act to amend the civil practice law and rules, in relation to business records of non-parties

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

Rule 3122-a of the CPLR was adopted to facilitate the introduction of business records produced by third parties either in discovery or for trial. It eliminates the need to bring in a custodian or other witness to testify to the authenticity of records by allowing such a custodian or other qualifying witness to provide a certification to that effect accompanying the documents.

One serious limitation to rule 3122-a in its present form is that it applies only to business records produced pursuant to a subpoena duces tecum under rule 3120. We see no reason that this desirable procedure should be limited to records produced solely by subpoena. In many cases, documents may be produced by third parties voluntarily, and those parties should not be put to the inconvenience of having to produce a witness to testify at trial as to the authenticity, regularity and completeness of the documents. Thus, we propose that rule 3122-a be amended to add a new subdivision allowing its certification procedures to apply to all business records produced by non-parties whether or not pursuant to subpoena.

It bears noting that any party may object to the procedure set forth in rule 3122-a after receiving notice from the party intending to use that procedure to introduce business records at trial. If the court sustains the objection, the introducing party will need to bring in a witness at trial to testify to lay the foundation for admission of the documents. Further, rule 3122-a does not supplant the procedure set forth in CPLR 2306 as to the introduction of hospital and municipal records at trial. A party seeking to introduce those records may still rely upon the procedure set forth in section 2306 or, alternatively, may follow the rule 3122-a procedures.

This measure, which would have no fiscal impact on the public treasury, would take effect immediately.

Legislative History:

None. New Proposal.