Labor & Employment Law

Subpoenas seeking public records and testimony by public employees

By Harvey Randall, Esq.

Subpoenas seeking public records and testimony by public employees
Pearl Sanderson v New York City Tr. Auth., 16 Misc.3d 1111(A), Supreme Court, Kings County, Judge Jack M. Battaglia

From time to time a party wishes to obtain records held by a State or municipal agency not a party in the litigation or have a ?third party? State or municipal officer or employee testify in a proceeding. May this be done by an ?attorney?s subpoena? or must the party obtain a ?judicial subpoena?? These were among the procedural issues considered by State Supreme Court Judge Jack M. Battaglia in the Sanderson case.

Judge Battaglia said that courts regularly receives ex parte applications for judicial subpoenas to be served on nonparty public officials for either testimony or the production of records or both. Observing that frequently ?these applications are either unnecessary, or fail to comply with statutory procedural or substantive requirements,? Judge Battaglia set out a number of guidelines for requesting such subpoenas in resolving the Sanderson case.

First Judge Battaglia considered subpoenas seeking testimony by an official to be served on a nonparty municipality or the State. He said that a subpoena seeking solely the testimony of an officer or employee, without requiring the officer or employee to bring any documents or any other things to the proceeding, need not be issued by the court, and does not require a motion. In other words, an attorney?s subpoena will be sufficient in such cases.

CPLR 2307 requires a motion only for the issuance of a subpoena duces tecum, and does not refer to subpoenas ad testificandum. Accordingly, Judge Battaglia said that serving a subpoena ad testificandum upon an officer of a ?library, or a department or bureau of a municipal corporation or of the state? does not require a motion, and need not be ?so-ordered.?

However, should a person or entity does not comply with the non-judicial subpoena ad testificandum, the issuer may seek to have a court to enforce the subpoena by bringing a motion as set forth in CPLR 2308(b).
In the event a party seeks to have a nonparty produce various documents (a subpoena duces tecum), that party must comply with the procedures set forth in CPLR 2307 and CPLR 3120(4). CPLR 2307(a) provides, among other things, that

[a] subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state, or an officer thereof, requiring the production of any books, papers or other things, shall be issued by a justice of the supreme court in the district in which the book, paper or other thing is located or by a judge of the court in which an action for which it is required [emphasis supplied].

Judge Battaglia said that the fact that the Legislature explicitly retained the ?motion-on-notice? requirements of CPLR 2307 in situations where a subpoena duces tecum is sought ?can lead to no other conclusion than that the court may not simply ignore them and entertain an ex parte application for a subpoena duces tecum to be served upon ?a library or a department or bureau of a municipal corporation, or of the state, or an officer thereof.??

As to Sanderson?s ex parte application seeking the issuance of four judicial subpoenas to be served upon nonparty police officers, Judge Battaglia denied them, ?without prejudice to [Sanderson?s] bringing a motion in accordance with this decision or serving non-judicial subpoenas ad testificandum.?

Full post as published by New York Public Personnel Law on April 15, 2008 (boomark / email).