A 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 Your Action Outside New York, and do so

  • cost-effectively,

  • 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.




To: Trial Lawyers, Litigators, Overworked Associates, Long-suffering Paralegals

From: 

Allan R. Pearlman, Esq.
Re: 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 York



1. The Quick, Short Version:  

It starts with a need for discovery. A deposition, documents, books and records, photos, videos, perhaps even an inspection of a premises.

a. The Problem: You are litigating a civil action in state court anywhere but New York and You've got an Unwilling, Uncooperative, Reluctant Non-Party Witness in New York

You've tried asking nicely. You've tried phoning, writing, emailing.

To your aggravation, in response to your efforts, your witness
  • says "No," or
  • does not respond, or
  • says "not without a court order," or
  • says "yes" but never shows up.

b. Gotta Get a Subpoena

You need to serve a subpoena to compel this unwilling New York-based witness to appear for deposition or produce documents and things, or both.

And your state court subpoena, whether from Florida, California, Pennsylvania, Ohio, or any of the several states, territories or possessions of the United States, or from a jurisdiction outside the United States is no good in New York.

State court subpoenas do not, on their own, cross state lines, not even one signed by a Judge of your court. But you know this already.

You need a New York subpoena for your non-party witness in New York.


c. Getting a New York Subpoena -- You've got Choices! (Maybe) -- Either "The Fast and Cheap Method" or "The Gold Standard"

It used to be that an out-of-state litigant had only one option: Get a court order authorizing issuing a New York state subpoena. CPLR 3102(e).

This requires the litigant to hire local counsel, commence a proceeding in New York state court, and with a commission, or letters rogatory, letter of request, or similar order or writ issued by the trial court outside New York, make a motion to get that New York state court order.

The result is that using this method, you issue and serve a subpoena pursuant to court order after the court review and approval of your stated need for the discovery you seek from the reluctant non-party witness.

This procedure, issuing a subpoena pursuant to court order, can be fairly described as the Gold Standard, because your subpoena has been reviewed and approved by a judge, and so is supported by the court's order (while this is not a guarantee that it will not or cannot be challenged, but the order suggests a baseline of acceptability not present in a subpoena that is not issued pursuant to court order).

Then the law changed to institute a second option, which can be described as the Fast and Cheap Method.

The Fast and Cheap Method became an option in 2011 when New York State adopted the Interstate Depositions and Discovery Act, which allows litigants, in many situations, to obtain a valid, enforceable New York subpoena without getting a court order. CPLR 3119.

Because Option Two, the Fast and Cheap Method, enables a litigant to bypass the requirement of hiring local counsel and getting a court order, a subpoena can be issued more quickly than under Option One, the Gold Standard, and, at least initially, more inexpensively. But dangers abound. To avoid those dangers (more about them below), get the Guide, New York Subpoena for Actions Outside New York.
 
Get it now: Get the guide,

NY Subpoena for Actions Outside NY


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If you have a choice between the two procedures, which way to go? The Gold Standard, where your New York subpoena is backed up by a Court Order signed by a Justice of the New York State Supreme Court or the Fast and Cheap Method, where all you've got is a subpoena signed by a court clerk or a New York lawyer?


d. A Decision Accelerator Algorithm: Six Situations Where Going Gold is the Way to Go

The law may allow you to use the Fast and Cheap Method, which is appealing because it is both, well, fast and cheap, at least at the outset.

Why spend more time or money to get a result if you can get that result in less time at lower cost?

Considering the overall potential cost, including the hazards of litigation, will sometimes suggest that what looks like what might be the fastest and cheapest way to get the desired result is not necessarily always the best or most effective way (and, therefore, in the longer run, is not as fast and cheap as it looked at the start).

The following are six situations where using the Fast and Cheap Method may be a mistake, where "Fast and Cheap" may transform into "Slow and Expensive" and "Pennywise and Poundfoolish":

1. Your witness is probably not going to comply with the directions in the subpoena even if served -- he or she will probably not show up for the deposition you need, and which your subpoena demands.

2. Your witness is probably not going to produce the documents, records, or things you need, and which your subpoena demands.

3. More than not show up or not produce, your witness is probably going to resist the directives in your subpoena.

4. Your witness is probably going to make a motion to quash or seek a protective order limiting your subpoena, or both.

5. Your witness is more likely to be persuaded to comply with, rather than resist, a subpoena that is served together with a court order authorizing issuance of the subpoena and directing that the subpoena be served on your witness.

6. Your case is pending in a country outside the United States, its territories or possessions -- then you have no choice. You must use the Gold Standard; the Fast and Cheap Method is not available in your case.


If any of these six situations exists, then the prudent and effective lawyer does not debate. Instead, the prudent and effective lawyer avoids being pennywise and poundfoolish, as well as what would amount to a false economy of using The Fast and Cheap Method to issue a subpoena, opting instead to go for the gold. Call my office now at 646-827-4257 to discuss getting started.


Call my office now at 646-827-4257 to discuss getting started on getting the New York state discovery you need to be trial ready.


2. If the Fast and Cheap Method is Still a Reasonable, Possible Option for Your Case, Beware its Deceptive Simplicity

If you review the New York's procedural rules, found primarily though not exclusively in the Civil Practice Law and Rules or "CPLR," the section stating the rules for the Fast and Cheap Method looks, at first glance, like it is relatively simple.

a. The Universe of New York State Procedure Incorporated by Reference.


A closer look, however, reveals that it incorporates by reference seven specific sections of the CPLR, and these, in turn, incorporate other sections of the CPLR as well as other statutes and rules in New York law, outside the scope of the CPLR. (As Bob Dylan said, "Look out, Kid, you're gonna get hit....")

b. No Court Pre-Approval


Different from using the Gold Standard where your subpoena is reviewed and approved by a Justice of the Supreme Court (in New York, the Supreme Court is the trial court of general jurisdiction), and supported by that Justice's signed order, when you use the Fast and Cheap Method, you are, to a greater degree, on your own, and more exposed to the panoply of statutes, rules and case law governing subpoena practice, and more generally, discovery in New York state (which, in New York practice, is referred to as "disclosure," rather than "discovery").

While using the Fast and Cheap Method can succeed in getting a litigant the discovery sought, with things going just fine, there are multiple opportunities in the arcane world of New York procedural rules for your subpoena to have a defect, or language that might be interpreted to be arguably defective, either of which increases the subpoena's exposure to challenge, motion practice, and quashing, or limitation by protective order, or both, or getting tied up in litigation for months, even if ultimately the Court determines that there is no defect, and denies the motions to quash or for protective order.

c. A Gift to You -- Knowledge, and therefore, Power


As examples of two potential pitfalls, and as a gift to you for reading this discussion, we will give you copies of two New York State rules that may bear upon your case: 1) a copy of the rules governing the subpoena for medical records, which, because of HIPAA, are palpably different from the rules governing a non-medical subpoena.

We will also give you 2) a copy of the rules for conducting a video deposition (note that the rules governing video depositions are not in the CPLR, but rather, elsewhere in the statuory/regulatory/common law framework which together creates a matrix of rules governing New York State civil procedure).

We may also, from time to time, send you updates by email about discovery-related news and issues.

To get this free gift of information, just put in your name and primary email address into the boxes below and click "sign up."

You'll get an email asking you to confirm that you requested this by clicking on a link and then, as soon as you do your gift will be emailed to you.






"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 the newsletter."
--     Michael Minns, Esq., Houston, TX ;  
www.Minnslaw.com



3. To Get a Fuller Understanding of New York State's Out of State Subpoena Rules, and to do so Quickly, Get the Guide

Get a fuller, deeper understanding of the out of state subpoena process in New York.

Whether you are still on the fence, deciding between using the Gold Standard to get a court order, or using the Fast and Cheap Method to issue a subpoena without a court order.

The guide will get you up to speed faster. Get the guide to help you decide. Get the guide to make a more informed decision, and to be able to do so sooner rather than later. Get the guide to help you get it done.


New York Subpoena for Actions Outside New York

 

Get the guide:
NY Subpoena for Actions Outside NY

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"If 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 




a. If you do have a choice between the Gold Standard (the Old Law) and the Fast and Cheap Method (the New Law), and you determine that using the Fast and Cheap Method is the way to go, then 


1. you need to understand the requirements of the Fast and Cheap Method well enough to draft and issue a subpoena that complies with its requirements (for example, you actually must draft two subpoenas), as well as, more generally,

2. You need to understand enough New York civil procedure to draft a New York subpoena that is enforceable, and likely to withstand challenge -- motions to quash or for protective order or both -- 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.

b. If you are using the Fast and Cheap Method, quickly understand the requirements of the New Law .


c. Plus, avoid potential pitfalls of subpoena practice in New York. 


d. Make your subpoena more likely to 


1. withstand challenge,


2. withstand your adversary's or your witness's motion to quash,


3. withstand a motion for protective order, and
 

4. prevail on your motion for contempt and to compel compliance with your subpoena if your reluctant witness continues to be reluctant, and to resist compliance even after being served with the subpoena.

> Get the guide now for a headstart on drafting an enforceable New York subpoena

e. This guide also addresses special rules relating to getting medical records.


f. 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 are
 


a. not discussed in the new law itself 


b. not discussed in the sample form subpoena created by the New York Court system (a copy of which is included in this guide),
 


c. not yet 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.


> Get the guide now to be aware of some of the trips and traps of New York procedure which can cause problems -- and otherwise avoidable litigation -- for even experienced New York practitioners.

9. Also, this guide will speed your preparation time and work time because it includes 

a. the New York Court System’s sample subpoena under the New Law (not an official form, just a sample), 


b. Other 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.



Get the guide now to speed up your research and preparation to get this done.

6.  Making Yourself Trial Ready


Now 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.

Get the guide now to start getting this done, and being ready for trial.


7. This Applies to both Plaintiffs and Defendants


Whichever 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.


Get the guide now to get this done, and get yourself ready for trial.


 

8.  Why Get this Guide?

Why not just research on your own, call the County Clerk in one of the counties in New York, or call someone else?

 

The Wheel was Invented Circa 3,500 BC, 

You Want to Reinvent it Now?


Let me start by answering the question with a question: how many wheels do you want to reinvent?

 You Want Help from the Clerk’s Office?

As 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 self-righteous tone of voice,

“Counselor, we can’t do your research for you. That’s something you’ll have to do for yourself.”

And will they still be on the line when you say,

“I’m not asking for you to do my research, I’m just asking . . . .”

So, why 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 statutes.

Further, this guide collects more than 50 crucial, relevant and potentially relevant statutes and rules, so you have a head start on researching the the statutory underpinnings of the discovery you seek.


Get the guide now to get this done.



9. This Guide is Full of Information Yet is Concise

This 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.

More 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.


Get the guide now to get this done.


Information Combining Research and Experience


The 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.

Author's experience researching and writing for judges


I learned it not just from litigating in the New York State courts, but also from working for New York judges.

I 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.

Get the guide now to get this done.

Private practice experience with out-of-state commissions and subpoenas


Now, 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.

When 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.

After 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.


Get the guide now to get this done.

Peer-reviewed approval


I am AV-Rated by Martindale-Hubbell Attorney Peer Review ("AV" is the highest rating given to attorneys for legal ability and ethical standards.) To learn more about Martindale-Hubbell Peer Review, click here.

My 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.

And 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).


Get the guide now to get this done.


10.  Don't Put this Off -- You've Got an Overworked, Crabby Judge with Docket Statistics Reports to Hand In


Your 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.

If 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.

If 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.

Get the guide now to get this done, and be ready for trial.

11. Again, WHY BUY THE GUIDE AT ALL? What is it worth to you?

There 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.

But 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.

Of 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 and forms?

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 statute.

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:
  1. A partner, who bills at $550/hr devotes six hours to learn the New York subpoena rules himself, worth $3,300.
  2. 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.
  3. 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 and $1,600.

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? Again, absolutely.

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.



Get the guide now to get this done, and be ready for trial.


Consider 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 witness 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 motion to 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.

Get the guide now to get this done, and be ready for trial.

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 associate's time


If you could have a focused guide which

1) explains the two principal governing laws and procedures,

2) 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

4) discusses how to draft the subpoena, with forms and examples,

5) alerts you to and explains potential traps and pitfalls which can render a subpoena defective and unenforceable,

6) gives a primer on service of process, and

7) collects over 50 statutes and rules which are either crucialto or potentially relevant to your properly drafting, issuing, and serving a subpoena, then ...



How much time could that save you? Hours? Days? Weeks? Months?

How 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? Days? Weeks?

Get the guide now to get this done.

Speed your research, preparation, drafting and issuing a New York subpoena

This 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.

Get the guide now to get this done.

Draft a subpoena to withstand challenge, motions to quash or for protective order

When you 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?

Get the guide now to get this done .

Draft a subpoena to avoid potential procedural trips and traps


What 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.

Get the guide now to get this done.

Make an informed decision as to which procedural route to use in issuing your New York subpoena

While 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 the guide now to get this done.


This guide helps with all of it

To help you accomplish this, I have written this more than 120-page guide, New York Subpoena for Actions Outside New York, and collected the relevant statutes and examples, the price is only $97.00.

Get the guide now to get this done.




GET IT NOW: The guide, New York Subpoena for Actions Outside New York, delivered in PDF format for immediate download for only $97. Add to Cart

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New York Subpoena for Actions Outside New York
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Allan Pearlman is AV rated by Martindale-Hubbell peer review

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