former New York State Supreme Court Senior Court Attorney, now AV-rated
in private practice, will show you the quickest, easiest ways to get the
New York Subpoena You Need for
Outside New York, and do so
saving you hours of research time,
saving you or your client or both up to thousands of
dollars in legal fees for research, and avoided litigation.
Plus, get short-cuts to "bullet-proof" your New York subpoena so it is more likely to
withstand a motion to quash or for protective order, and so withstand
challenge and judicial scrutiny.
this guide, New
York Subpoena for Actions Outside New York, now to
determine what procedure to use to get discovery from a reluctant
nonparty witness in New York, where your case is anywhere BUT New York,
move quickly to issue a valid New
York subpoena to compel your reluctant witness's compliance,
you can be ready for trial.
this guide now
to help you, your client, or both save thousands of dollars and oodles
Getting Reluctant, Uncooperative
Non-Party Witnesses in New York to Appear for Deposition and/or Produce
Documents and Other Evidence, When Your Case is Anywhere Outside New
Birth of a Problem --
the Reluctant Non-Party Witness
are in a civil action pending in a state other than New York (or
territory, possession of the United States, or another country), or you
are in pre-action discovery.
have a non-party witness who will not voluntarily appear for deposition
or produce documents or other evidence he or she** has (or has control
over) and which you need for your case. And your non-party witness
lives in New York.
your non-party witness might be an "it" rather than a "he" or "she," if
the witness is a corporation or union or not-for-profit organization,
or other entity which is not a natural person.
you've already tried writing to this witness. Or maybe you've tried
phoning, or emailing, or even texting him or her.
for all these efforts, the witness has not responded, not answered your
calls, not replied to your letters, your emails, your texts, your smoke
maybe your witness has responded and said that he or she would tell you
or show you what you need to know or see, if only they could find the
time. Your witness is too busy or distracted.
maybe your witness just said "No."
happened, it is clear that getting your discovery informally is not
going to happen. You need a valid, enforceable New York subpoena to
make it happen.
used to be that you had no choice but to hire local New York counsel.
Then, through local counsel, start a special proceeding in New York
Civil court seeking an order authorizing issuing a New York subpoena.
"Local counsel are a must if you
want to know what's
going on in a local case… and if you are not local. For New York, my
friend Allan Pearlman has written the definitive work. Allan is also
the author of a national tax newsletter which I and many others read
regularly for its timely thoughts and advice. Get the book and
Gives Out-of-State Litigants Choices Where Previously there were None
for Getting Discovery from Non-party Witnesses Located in New York
the law has changed. Now, in many situations, you have choices: You can
still start a proceeding and get a court order. Or you can skip it to
the new law to issue a subpoena without court order. Both routes have
their appropriate time and place.
to be there was no choice.
the “choice” was like the “choice” Henry Ford gave buyers of the Model
T: “you can have any color you want as long as you want black.”
used to be that you needed to get an order, or a formal request, from
your home court, where your action is pending. That order or formal
request from your home court would be directed to a court in New York.
you need to issue a subpoena in New York for a case pending in another
state or country, and you want to do it right the first time, this book
is for you. New York has two procedures for obtaining a subpoena,
and even knowing which procedure fits your situation requires
homework. This book guides you through the process with great
contextual explanations so that you not only know what you are doing,
but also why you are doing it. Whether you are getting medical or
business records, or taking the deposition of a key witness, you will
want this book to help you get the job done smoothly."
Robert B. June, Esq., Ann Arbor, MI
Your Trial Court’s Commission was, and May Still Be, the Beginning of
the Process to Get the Evidence You Need from Your Reluctant Non-party
Witness so that You Can Be Ready for Trial
order or formal request from your home court to a court in New York can
take a number of forms, using several different names, such as
Commission or just “Commission,”
Letter of Request,or
similar court order, mandate, or writ.
process to convert your out-of-state commission, letters rogatory or
other order, mandate or writ to a New York subpoena takes several steps
you obtained that order or formal request from your home court -– the
commission or similar order, mandate or writ -- directed to a court in
New York, you had to domesticate that order in New York by
local New York counsel,
local counsel start a special proceeding (its like an action) in New
York which is ancillary to your
home court action, and, in the New York proceeding,
a motion seeking an order authorizing issuance of a valid New York
subpoena directed to your witness, and upon obtaining that order,
the New York subpoena authorized by the New York court order and
the subpoena and authorizing order on your nonparty witness.
do all of this because with that enforceable New York subpoena you can
effectively assert jurisdiction over a reluctant New York-based
nonparty witness, and compel that witness to appear for deposition, or
produce documents, or both.
an enforceable New York Subpoena for your out-of-state action you may
compel your non-party witness to produce a variety of information,
documents and things.
witness – the reluctant one – the one who doesn’t answer phone calls,
letters or emails, or who says “yes” but never follows through, or just
says “no” – that reluctant nonparty witness has, or has access to, or
are relevant, material, and necessary to prosecuting or defending your
now have choices in how to get that New York subpoena for your
outside New York case.
to be that this was the only way to get a valid, enforceable subpoena
in New York for your case
pending anywhere else.
as mentioned above, a new law gives many out-of-state litigants needing
discovery from a nonparty witness in New York choices: use the
procedure under the Old Law (described above) or use the more
streamlined procedure in the New Law.
you may be able to skip starting a proceeding in New York and skip
getting a court order in New York
your case qualifies to issue a subpoena under the New Law, you can save
substantial time and money by using the New Law rather than the Old Law.
to the "get an order from one court" and "start an action or proceeding
court" routine where you bring the commission from your home
to a court in New York to ask the New York court for a new order (this
procedure under the Old Rule), the New Rule looks like a “no fuss, no
muss” procedure. In
many situations it may be, but not necessarily all.
Use the New Law? Use the Old Law? Deciding Which, and then
get the discovery you need from your nonparty witness in New
in a faster, more efficient, more cost-effective way, you need to do
a necessary first step, you must determine: Can you use the New Law in
your case? i.e., does your case qualify to use the New Law to issue a
New York subpoena?
if the case you are litigating is in a jurisdiction outside the United
States, possessions or territories, such as Canada, France, Australia,
your case cannot use the New Law. In this situation, Call my office at
646.827.4257 to get started on getting this done.
yes, if you can use the New Law, do you want to? Or more accurately,
procedure under the New Law the better and wiser litigation strategy
for your case?
the potential time savings and cost savings which are possible when
using the New Law outweigh some of the potential disadvantages of the
no, if your case does NOT qualify, or you determine that using the New
Law is NOT the best procedural route for your case, then you need to
get a commission from the trial court in your state and hire local New
York counsel to move forward on getting the order you need under the
do have a choice between the Old Law and the New Law, and you determine
that using the New Law is the way to go, then
need to understand the requirements of the New Law well enough to draft
and issue a subpoena that complies with the New Law’s requirements, as
well as, more generally,
need to understand enough New
York civil procedure to draft a New York subpoena that is enforceable,
and likely to withstand challenge and judicial
scrutiny. Note that the new statute and the court system's sample
subpoena for the new statute are NOT enough of a guide.
are using the new law, quickly understand the requirements of the New
avoid potential pitfalls of subpoena practice in New York.
your subpoena more likely to
your adversary's or your witness's motion to quash,
c. withstand a motion
on your motion for contempt and to compel compliance with your subpoena
your reluctant witness continues to be reluctant, and to resist
compliance even after being served with the subpoena.
This guide also addresses special rules relating to getting medical
This guide addresses special rules relating to videotaped depositions,
video-conference depositions, and telephonic depositions.
8. This guide also
addresses aspects of how New York law and procedure may
affect the enforceability of a subpoena under the New Law. These issues
discussed in the new law itself
discussed in the sample form subpoena created by the New York
Court system (a copy of which is included in this guide),
defined by case law, d. yet
they might cause a litigant seeking discovery under the New Law
problems, extra litigation, time, money and heartache if not dealt with
in the subpoena.
this guide will speed your preparation time and work time because it
a. the New
York Court System’s sample subpoena under the New Law (not an official
form, just a sample),
potentially relevant New York state forms, c. The
text of more than fifty (50!) statutes and rules which are
indispensible in getting or creating a valid New York subpoena for your
action outside New York, or might be needed.
you can move forward to get the deposition you need, the documents and
things you need, which your nonparty witness in New York has (or
which, on information and belief, you think your witness has, or
confirm that he or she does not have them), and move your case forward
to be ready for trial.
side of the “v” you are on, you've got to do this. Plaintiff,
defendant, even an intervenor. If there’s a non-party witness to your
case pending outside New York, and that witness is in New York, you
have to deal with New York’s out-of-state subpoena rules to compel your
reluctant, even downright uncooperative, witness to cooperate.
just research on your own, call the County Clerk in one of the counties
in New York, or call someone else?
Wheel was Invented Circa 3,500 BC,
to Reinvent it Now?
start by answering the question with a question: how many wheels do you
want to reinvent?
Help from the Clerk’s Office?
for phoning a County Clerk, how long do you want to wait on hold? Plus,
once you get a live person at the Clerk’s office, how long will it take
for the clerk to say, in a weary, annoyed, somewhat
tone of voice,
we can’t do your research for you. That’s something you’ll have to do
they still be on the line when you say,
asking for you to do my research, I’m just asking . . . .”
get this guide instead of doing it yourself, asking a bureaucrat, or
calling someone else?
This guide does a lot of the
research heavy lifting for you. It discusses
the old law and the new law, the differences and similarities, the
differing requirements of both, the ambiguities and grey areas of the
Further, this guide collects more than
relevant and potentially relevant statutes and rules, so you have a
head start on researching the the statutory underpinnings of the
discovery you seek.
Guide is Full of Information Yet is Concise
guide discusses and compares the Old Law and the New Law, to give an
understanding of both, as separate, independent, yet related statutes,
and in the larger context of New York procedure.
than just a paint-by-numbers guide, this guide discusses some of the
potential strategic considerations so that an informed decision based
as to which procedure to use can be made, and made in a way that
enables you to take not only price into account, but also the larger
picture of the potential flow of litigation.
guide can do this because I know the New York State law and procedure
to speed you through the process. The research on the two specific
statutes is broadened and informed by years of experience of the New
York court system, both as a litigant and as a Senior Court Attorney,
researching and writing proposed decisions for the justices of the New
York State Supreme Court.
experience researching and writing for judges
learned it not just from litigating in the New York State courts, but
also from working for New York judges.
am a former New York State Supreme Court Senior Court Attorney. When I
worked for New York State Supreme Court I researched and wrote proposed
decisions for the justices of the court. I also mediated discovery
disputes between opposing trial counsel.
practice experience with out-of-state commissions and subpoenas
in private practice, in addition to representing ordinary, non-lawyer
clients and businesses, I also regularly collaborate with other lawyers
and firms. I sometimes represent attorneys. And I have served as local
counsel on applications such as this -- domesticating out-of-state Open
Commissions to get discovery from nonparty New York-based witnesses.
the New Law was enacted, I continued to get inquiring phone calls from
lawyers around the United States, wanting help to understand how to
best go about getting discovery in New York for their cases pending
outside New York.
multiple telephone conversations about this issue, it became clear that
a book, a guide discussing and explaining New York’s rules and
procedures, and some of the trips and traps, was needed. The guide for
sale on this website is the result of my 20 years of experience in
private practice as well as researching and writing for judges in both
federal and state courts.
practice can help you get through the thickets of New York procedure as
well as the sui generis quirks of the courthouses here, and help you
get your New York order, issue your New York Subpoena, and get
everything served, so that your way is cleared for the deposition and
documentary discovery you need.
if your reluctant non-party witness is not persuaded by being served
with an enforceable subpoena, now you have real recourse (i.e., moving
to hold the witness in contempt of court).
Don't Put this Off -- You've Got an Overworked, Crabby Judge
with Docket Statistics Reports to Hand In
judge is probably eager to mark your case's discovery phase as complete
and ready for trial, even if he or she is the next Oliver Wendell
Holmes. So, don't put this off. Get this guide now to start getting
this done, and so getting yourself and your case ready for trial.
you are using the Old Rule, It takes some time to get your application
through the New York courts. Plus, under both the Old Rule and the New
Rule, the subpoena must be served well in advance of the deposition
and/or production date.
your New York witness has the information you think he or she (or it...
in the case of a corporation, union or other body) has, then this is
important, and you don't want to be foreclosed from getting this
discovery by the simple passage of time. So don't put this off.
Again, WHY BUY THE GUIDE AT ALL? What is it worth to you?
is no doubt that you can do this all yourself: as so many law students
in so many law schools have been told: "You're smart." Plus you've been
educated and trained. You have taken multiple exams, passed at least one bar exam, and now are actively practicing law.
You Don't need the Guide because You Can Research it All Yourself
You know how to do legal research. You
can crack open New York state's civil procedure rules (the "CPLR" as we
affectionately call it here), and start figuring it out.
But do you want to? Do you want to spend your time, or your client's
money, or both, to do of basic research to get up to speed. And you might not be able to bill for it.
One article of New York's CPLR contains the nine statutes and rules
referring specifically to subpoena practice.
Further, in the sections
relating to subpoenas, multiple
other articles and sections of the CPLR are incorporated by
reference in the subpoena-specific rules.
if You Do it All Yourself, How Many Hours Will You or Your Associate
Devote to Understand the Rules and Nuances of New York State Law Well
Enough? How Much Time will You Spend? How Much Money will You Spend?
How long will it take to understand the subpoena rules alone? How long will it then take to understand the
interplay of the subpoena rules with the other articles and sections of
the CPLR? If you are starting from zero, how long? two hours? (Probably longer) four? six?
What's more, there is a body of case law in New York interpreting the many
rules and nuances of New York state subpoena practice.
course you can find those
cases interpreting New York's procedural rules on subpoenas, service of
a subpoena, drafting a subpoena, read them, analyze them, understand
them. But do you really need or want to start from
zero? Start from scratch? Or assign an associate to do so?
Do you really need or want to search around the internet, using Google
or Bing, or your preferred search engine to find freebie explanations
In the body of New York case law, there are issues which the four
distinct departments of New York state's intermediate appeals court,
the Appellate Division, do not agree.
You can find the cases on your own, read them, analyze
the caselaw yourself, figure out the variances in terminology used from
case to case, the conflicting interpretation of three words in one
You can do it yourself, but do you have the time to make yourself
an expert (or at least minimally informed) in New York's CPLR or do you want to get your reluctant New
York witness's deposition and/or documents, be ready for trial and place your case on the trial calendar?
One reader of the guide, a tenacious trial lawyer in Michigan who's
been practicing close to 20 years, estimated that without the Guide, it
would take him easily six or seven hours to get up to speed and facile
with New York's rules.
The Cost of Doing it All Yourself is High, in Terms of Both Hours and Dollars
So, consider these possible situations:
A partner, who bills at $550/hr devotes six hours to learn the New York subpoena rules himself, worth $3,300.
A partner delegates to a senior associate the task. the
associate bills at $350/hr., takes 8 hours, worth $2,800; plus the
partner devotes 0.8 hours supervising and being briefed by the
associate, worth another $440, for a total, between partner and
associate, 8.8 hours and $3,240.
A partner delegates the research task to a new associate
who bills at $250/hr, the new associate takes 10 hours, the senior
associate spends an hour supervising, for an additional $350, and the
partner spends an additional 0.5 hours supervising and being briefed,
at an additional $275, for a total time of 11.5 hours among the partner
and two associates, and a billable value of $3,125.
If you had a resource, a guide that could cut your basic research time in half, you could save at
least three hours and $1,500, and as much as almost almost six hours
Would that resource, that guide, which made those savings in time and money possible be worth $750?
Sure. Would it be worth $500? Absolutely.
If the resource, that guide, could enable you to cut your research by two-thirds,
you could save yourself at least four hours and $2,200, and as much as
nearly eight hours and again over $2,000.
Would the resource, that guide, which made
those savings in time and money possible, be worth $750? Again, sure, of course.
Would it be worth $500?
That resource, that guide is here. You can have that resource, that guide right now, and for much
less than $750, or $500.
You can have it right now for less than $100 -- it
is available right now, as a digital download for only $97.
Also the Potential for Enormous Savings in Time and Avoided Litigation
by Choosing the Right Procedure and Crafting a Subpoena that is More
Likely to Withstand Challenge and Even Persuade Your Reluctant Witness
NOT to Move to Quash
Further, if you could craft a New York subpoena without errors exposing
it to challenge, which persuaded your reluctant witness that moving to
quash was likely not to succeed, and so, rather than challenge your
subpoena, your witness simply complied?
How many months of litigating your subpoena in New York state court and
how many thousands of dollars in local counsel fees will you save?
As an example, I was hired to represent a party seeking discovery in New York after the non-party
subpoena was issued and served for a case pending outside New York.
A motion to
quash or for a protective order limiting the subpoena was made. The
subpoena had to be defended, the motions opposed. Eight months,
multiple court appearances, conferences,
letters, and more than $20,000 in legal fees later, the New York
Supreme Court Justice hearing the motion finally decided, denying the
quash and and denying 95% of the motion for protective order.
The party seeking discovery prevailed, but at a high cost. Thousands of
documents critical to making the case in the
outside-New York action were, finally produced. It was a happy ending
for the party who issued the subpoena, but the happiness was reduced by
months of litigating in New York whether the subpoena should be
enforced or quashed.
If a subpoena could have been crafted which was
so compliant with New York's rules that the opponent of discovery was
persuaded not to challenge it, and not to move to quash, I think you
would agree that a resource which assisted in crafting such a subpoena
would be worth thousands of dollars, not $750 or $500.
And again, you can have a resource like that, the Guide, for much less, for only $97.
If you could avoid most of that basic research and use a concise guide
to fast-forward your effort.
In any of these possible situations, wouldn't it be worth spending less
than $150 to save yourself four, five, six hours of your time or your
could have a focused guide which
explains the two principal governing laws and procedures,
describes the circumstances where the new law and procedure can and
cannot be used, so you can quickly eliminate a debate over which to use
if you actually do not have a choice,
3) walks you
through the pros and cons of both procedures so you can make a more
informed decision as to which procedure to use, without basing
everything on the projected initial price (you don't want to be pennywise
and pound foolish!), then
discusses how to
draft the subpoena, with forms and examples,
alerts you to and explains potential traps and pitfalls which can
render a subpoena defective and unenforceable,
gives a primer on service of process, and
collects over 50 statutes and rules which are either crucialto or potentially
relevant to your properly drafting, issuing, and serving a subpoena, then ...
much time could that save you? Hours? Days? Weeks? Months?
much time will it save you to have a guide discussing the law, and
gathering relevant statutes at rules right at your finger tips? Hours?
your research, preparation, drafting and issuing a New York subpoena
guide is designed to help speed up your research, your preparation,
your drafting, your issuing and serving an enforceable New York
subpoena on a nonparty witness to your outside New York case. When the
partner on your case says to you, with perhaps an annoyed or
menacing tone, "get it done," this guide will be there to help you.
subpoena to withstand challenge, motions to quash or for protective
do draft, issue, and serve a subpoena, you want to serve a subpoena capable
of withstanding a motion to quash
or for protective order. How many hundreds of hours, days weeks and
months might this save you and your client? How many thousands of
dollars might this save you and your client?
subpoena to avoid potential procedural trips and traps
if you drafted your New York subpoena in a way that avoided one or more
of the drafting traps hidden in the morass of New York state procedural
law, both statutory and case law, and so managed not to have to defend
a defective subpoena from a motion to quash? Some motions to quash can
drag on for months in New York's very busy courts.
informed decision as to which procedural route to use in issuing your
New York subpoena
the new law gives out-of-state litigants choices in how to get their
New York subpoena, you need to determine if your case qualifies, and if
it does, which route to use: the old law or the new law. Understand
what might be at stake. Don't decide just on price, on what appears to
be a likely lower cost of the new law. Understand the potential
advantages and disadvantages of both rules, both procedural routes, so
that you can make a more informed, and (we hope) better decision.
GET IT NOW: The
guide, New York Subpoena for Actions
Outside New York, delivered in PDF
format forimmediate download for only $97.
GET IT NOW:
things: 1) The
guide, New York Subpoena for Actions
Outside New York, delivered in PDF
format for immediate download (for only $97),
2) a 20-minute
confidential conversation/Q & A with the author for only an
additional $140 (a
$60 savings) for a total of
only $237 (use Q&A credit within 45 days of purchase).
GET IT NOW: A 20-minute confidential telephone
with the author for
to use your telephone Q & A credit within 45 days of
you determine that your case needs, or it is likely to be better to
proceed under the old law, call my office at 646-827-4257 to discuss my
serving as local counsel to get you the New York court order you will
New York Subpoena for Actions
Outside New York
Law Office of Allan R. Pearlman
West 23rd Street, Suite 5190
New York, NY 10011
Pearlman is AV rated by Martindale-Hubbell peer review