Very often, especially in a probate, trust, or guardianship matter, a crucial witness will be out of state. Routinely in Florida, for example, we find it necessary to take testimony of witnesses located in New York. Under New York law, there are two methods for doing so.
By way of brief background, the Florida legislature provides for subpoena power over witnesses for testimony before the Court. Pursuant to Florida Rule of Procedure 1.410(b), a subpoena for testimony before the court shall be issued by an attorney of record in an action or by the clerk. Fla. Stat. § 48.031 governs the process and manner of service of process.
Under Fla. Stat. § 48.194, service of process outside of the state “shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required.”
Among other pitfalls to be mindful of, please note that witnesses must be compensated for their travel (Fla. Stat. § 92.151) and for their appearance (Fla. Stat. § 92.151).
New York Law
CPLR § 3102
New York CPLR § 3102(e) governs the procedure for obtaining the deposition of a witness in New York for use in a lawsuit pending in another jurisdiction. This statute may be invoked to obtain a subpoena ex-parte and does not require a showing of special circumstances. Criticism abounds however, and this not the traditionally preferred method. A number of steps are required under CPLR § 3102(e), including a Court Order before a subpoena may be issued.
Under this statute, the out of state party obtained a commission from the out of state court. In this case the Florida party would issue a subpoena and then commence a special proceeding in the New York state court. That out of state party then files a formal application seeking a court order authorizing the issuance of the subpoena.
CPLR § 3119
Effective January 1, 2011, New York adopted the Uniform Interstate Depositions and Discovery Act, codified in CPLR § 3119. This act permits a party in an out of state (non-New York) action to obtain the deposition of a New York witness, the inspection, production, and copying of designated records, and the inspection of premises. In order to do so, a party in the non-New York action must submit an out-of-state subpoena to the County Clerk of the county in which the discovery sought is to be conducted.
After a party submits an out of state subpoena to the County Clerk, the clerk shall promptly issue a subpoena for service upon the person to which the out of state subpoena is directed. Importantly, the subpoena must:
- incorporate the terms used in the out-of-state subpoena; and
- contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
CPLR § 3119(3). Please note that under this statute, if a party to the out of state action retains New York representation, the New York attorney who receives the original or a true copy of an out of state subpoena may issue a subpoena under this section.
In short, there are two ways to subpoena a New York witness for Florida litigation:
- Submit the out of state subpoena to the County Clerk;
- Engage a New York attorney, provide that attorney with “the original or a true copy” of the out of state subpoena so that the New York attorney may then issue and serve the subpoena.
A subpoena issued by the County Clerk or a New York attorney must still be properly served. Further, compliance must be compelled via court intervention if the witness does not appear. CPLR § 2304 governing motions to quash, fix conditions, or modify, and CPLR § 2308 governing disobedience of subpoena are useful to attorneys in this regard.
While CPLR § 3102(e) has not been repealed and may still be used, it is clear that those litigants seeking to obtain discovery of a New York witness will opt for CPLR § 3119 because it permits a New York attorney to issue a subpoena for discovery to be used in the out of state action without the involvement of the Court of the clerk of court.