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Second Department Reviews use of Subpoena Duces Tecum

July 1, 2013 • Posted By Joseph A. French • Trial Practice

The Second Department recently reviewed the use of a subpoena duces tecum in the case of Wahab v. Agris & Brenner, LLC, 2013 NY Slip Op 03667.

 Plaintiff was the owner of the third-party defendant and he was working at a commercial property in Middle Village.  The scaffold he was working on collapsed causing him to fall to the ground.  Several months after the completion of discovery, third-party defendants served the plaintiff with a subpoena dues tecum seeking records from him and his company.  Subsequently, plaintiff moved to quash the subpoena and the Supreme Court granted the motion.  The court noted, “the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed to seek during the discovery process, or that had previously been the subject of an unsuccessful motion to compel disclosure”.

Without adding more, it appears that the court sought to compel all parties to complete all necessary discovery during the applicable discovery time period before the filing of the Note of Issue.  It appears that the court’s will look  askance at the issuance of subpoena duces tecum and will grant motions to quash them if not done in a timely manner or if done in a second attempt to obtain discovery that had previously been rejected.