Serving an Out-of-State Subpoena in New York Under CPLR 3119

New York adopted the Uniform Interstate Depositions and Discovery Act as CPLR 3119. Here is how a subpoena from another state becomes a New York subpoena, and where New York counsel fits in.

New York Local Counsel

The Short Answer

A subpoena issued by a court in another state does not compel anyone in New York on its own. To take a deposition, obtain documents, or inspect premises in New York, the out-of-state subpoena has to be turned into a New York subpoena under CPLR 3119. There are two ways to do it: submit it to the county clerk, or retain New York counsel to issue it.

Route One: The County Clerk

Under CPLR 3119(b)(1), a party submits the out-of-state subpoena to the county clerk in the county where the discovery is to take place. The clerk then issues a New York subpoena for service on the person the out-of-state subpoena is directed to. Submitting the request does not, by itself, count as an appearance in the New York courts.

Route Two: New York Counsel Issues It

CPLR 3119(b)(5) offers a faster path. If a party to the out-of-state proceeding retains an attorney licensed in New York, and that attorney receives the original or a true copy of the out-of-state subpoena, the attorney may issue the New York subpoena directly. There is no trip to the clerk’s window.

What the New York Subpoena Must Contain

Under CPLR 3119(b)(4), the New York subpoena must incorporate the terms of the out-of-state subpoena and must contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the out-of-state proceeding and of any party who is not represented.

It must also include an affirmation under penalty of perjury, on a form the Chief Administrator of the Courts prescribes, stating that the subpoena is not related to an investigation or proceeding that seeks to impose liability for a legally protected health activity, or that it falls within the narrow exception in CPLR 3119(g). That requirement applies to subpoenas issued by the clerk and to subpoenas issued by New York counsel. A false affirmation carries a statutory penalty, so it is not a box to check casually.

Service and Disputes

CPLR 3119(c) requires service under CPLR 2302 and 2303. If the witness or a party moves for a protective order or to quash, modify, or enforce the subpoena, CPLR 3119(e) sends the application to the court in the county where the discovery is to be conducted, under New York rules. If that happens, you need New York counsel who can appear in that court.

Taking or Defending the Deposition in New York

Once the New York subpoena is served, the deposition still has to be taken. An out-of-state attorney who wants to examine the witness in New York should read our guide to pro hac vice for a deposition only. If a motion to quash, modify, or compel is made in the New York county where the discovery is conducted, our overview of New York local counsel explains how a New York attorney appears with you.

Frequently Asked Questions

How do I serve an out-of-state subpoena in New York? +

Under CPLR 3119, submit the out-of-state subpoena to the county clerk in the county where discovery will take place, or retain a New York attorney, who may issue the New York subpoena directly under CPLR 3119(b)(5). Service then follows CPLR 2302 and 2303.

Can a New York attorney issue a subpoena for an out-of-state case? +

Yes. If a party to the out-of-state proceeding retains a New York attorney and the attorney receives the original or a true copy of the out-of-state subpoena, CPLR 3119(b)(5) lets the attorney issue the New York subpoena.

What affirmation does a CPLR 3119 subpoena need? +

The subpoena must include an affirmation under penalty of perjury, on a standardized court form, that it is not related to a proceeding seeking to impose liability for a legally protected health activity, or that it falls within the exception in CPLR 3119(g).

Where is a motion to quash a CPLR 3119 subpoena made? +

Under CPLR 3119(e), in the court in the county where the discovery is to be conducted, under New York rules.