Friday, July 18, 2014

A subpoena to obtain discovery from a non-party.

Practice point:  Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The Court of Appeals has recently held that disclosure from a nonparty requires no more than a showing that the requested information is "material and necessary," that is, relevant to the prosecution or defense of an action. However, the subpoenaing party must sufficiently state the circumstances or reasons underlying the subpoena, either on its face or in an accompanying notice.  In moving to quash, the witness must establish either that the discovery sought is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious. On this showing, the subpoenaing party must then establish that the discovery sought is material and necessary to the prosecution or defense of an action.

Student note: CPLR 3101(a) is to be liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay.

Case:  Ferolito v Arizona Beverages USA, LLC, NY Slip Op 05153 (2d Dept. 2014)

Here is the decision.

Monday's issue: A motion to dismiss pursuant to 3211(a)(7).