New York Subpoena for Actions Outside New York

Attorneys: Call 646-827-4257 now to move forward quickly on getting the Court Order you need to get discovery from a reluctant non-party witness who is based in New York

oOo

To:	Trial Lawyers, Litigators, Overworked Associates, Long-suffering Paralegals
From:	Allan R. Pearlman, Esq.
Re:	Getting Reluctant, Uncooperative Non-Party Witnesses in New York to Appear for Deposition and/or Produce Documents and Other Evidence, When Your Case is Anywhere Outside New York

The Short Version:

You need local New York counsel to get discovery in New York

You need to convert your

Open Commission,
Letter Rogatory, or
other similar court order issued from a court outside New York

into an enforceable New York State order and New York subpoena.

With an enforceable New York State order and New York subpoena you can effectively assert jurisdiction over a reluctant New York-based non-party witness.

Your witness has or controls, or you have reason to believe has or controls, for example

knowledge,
information,
documents,
photographs,
spreadsheets,
invoices, billings, letters, correspondence,
records, reports and/or
other things

which are relevant, material, and necessary to prosecuting or defending your case, which, again, is pending in a court outside New York. And so you need discovery from this witness to prepare for and be ready for trial.

To prepare for and be ready for trial, you need local New York counsel to get the order (i.e., make the application to New York State Supreme Court*), and to issue the New York subpoena once the order is obtained. And then the order and subpoena have to be served.

I am an attorney with 18 years of experience and can make the application, issue the subpoena, get top process servers who work hard to effect service. I and my office can guide you through the intricacies of New York practice and procedure, and will work to make the process of getting your New York discovery as quick and painless as possible.

And, more important, our goal is to help you get this part of your pre-trial preparation done, so that you can be ready for trial. Really ready for trial.

Call my office at 646.827.4257 to start getting this done, and being ready for trial.

*Note: New York State Supreme Court is New York's trial court of general jurisdiction.

The above is all you need to know to get started. Just call my office at 646.827.4257.

But, if you want to know more, keep reading for more details about the process of needing, and then getting out-of-state discovery in New York, when your case is litigated anywhere but New York...

The Longer (but not boring) Version:

1. Birth of a Problem -- the Reluctant Non-Party Witness

You are in a civil action pending in a state other than New York, or you are in pre-action discovery.

You have a non-party witness who will not voluntarily appear for deposition or produce documents or other evidence he or she** has (or has control over) and which you need for your case. And your non-party witness lives in New York.

**And, your non-party witness might be an "it" rather than a "he" or "she," if the witness is a corporation or union or not-for-profit organization, or other entity which is not a natural person.

Maybe you've already tried writing to this witness. Or maybe you've tried phoning, or emailing, or even texting him or her.

But, for all these efforts, the witness has not responded, not answered your calls, not replied to your letters, your emails, your texts, your smoke signals.

Or maybe your witness has responded and said that he or she would tell you or show you what you need to know or see, if only they could find the time. Your witness is too busy or distracted.

Or, maybe your witness just said "No."

Whatever happened, it is clear that getting your discovery informally is not going to happen. You need a court order to make it happen.

This is a problem.

The problem is two-fold: Bigger than your 1) non-party witness being uncooperative, 2) your court, located outside New York, does not have jurisdiction over this non-party witness who is in New York.

Your outside-of-New-York court, as powerful as it is in your state (or country) wherever it may be, simply cannot order this New York non-party witness to do anything.

2. Starting to Solve the Problem -- Your Court Says "Please"

The first step to solving the problem: Get an Open Commission:

Maybe you have already taken the first step by getting your court to issue an Open Commission, or Letter Rogatory, or other similar order, requesting that the court which does have jurisdiction to issue an order enforceable against a reluctant witness in New York, the New York State Supreme Court.

Let’s say you’ve done that, and you have your court’s Open Commission in hand. That's just great, as far as it goes....

But, now, there’s another problem....

3. Your Court's Open Commission is Not Enough

You need to convert your court’s Open Commission, or Letter Rogatory, or other similar order into a New York State court order, and then, a New York State subpoena.

Put another way, you need to domesticate your order from your court outside New York into an enforceable New York order.

And you need local New York Counsel to do this.

a. Make an application to New York State Supreme Court

You need local New York counsel to make the application to the New York State Supreme Court to get the court order you need.

b. Issue a New York subpoena, and serve it

Once the New York State Supreme Court issues its order, then you need local New York counsel to issue a New York subpoena. And, the order and subpoena need to be served on your witness.

And service must be effected on the timetable and in compliance with the terms of the Order you just got as well as New York rules of civil procedure.

4. Getting Jurisdiction Over Your Witness

Once you've done that, where having "done that" includes:

getting an open commission or letters rogatory from your court;
making an application to New York State Supreme Court for an order based on your court's open commission;
Getting that order from New York State Supreme Court;
Issuing a New York subpoena as authorized by the Court's order and New York State's rules of practice and procedure,
Serving the New York State Supreme Court Order and the subpoena on your New York witness,

Then, and only then, do you have the jurisdiction you need over your uncooperative non-party witness in New York.

5. Making Yourself Trial Ready

Now you can move forward to get the deposition you need, the documents and things you need, which your non-party witness in New York has (or which, on information and belief, you think your witness has, or confirm that he or she does not have them), and move your case forward to be ready for trial.

I can do that for you. Call my office at 646-827-4257 to start getting this done, and being ready for trial.

6. This Applies to both Plaintiffs and Defendants

Whichever side of the “v” you are on, you've got to do this. Plaintiff, defendant, even an intervenor.

Call my office at 646-827-4257 to start getting this done, and being ready for trial.

7. Why work with my office?

Why call my office and not someone else? I know the New York State law and procedure to speed you through this process. I learned it not just from litigating in the New York State courts, but also from working for New York judges.

I am a former New York State Supreme Court Senior Court Attorney. When I worked for New York State Supreme Court I researched and wrote proposed decisions for the justices of the court. I also mediated discovery disputes between opposing trial counsel.

Now, in private practice, in addition to representing ordinary, non-lawyer clients and businesses, I also regularly collaborate with other lawyers and firms. I sometimes represent attorneys. And I have served as local counsel on applications such as this -- domesticating out of state Open Comissions to get discovery from non-party New York-based witnesses (a CPLR 3102(e) application, by the way).

And I am AV-Rated by Martindale-Hubbell Attorney Peer Review ("AV" is the highest rating given to attorneys for legal ability and ethical standards.) To learn more about Martindale-Hubbell Peer Review, click here.

My practice can help you get through the thickets of New York procedure as well as the sui generis quirks of the courthouses here, and help you get your New York order, issue your New York Subpoena, and get everything served, so that your way is cleared for the deposition and documentary discovery you need.

And if your reluctant non-party witness is not persuaded by being served with an enforceable subpoena, now you have real recourse (i.e., moving to hold the witness in contempt of court).

8. Don't Put this Off -- You've Got an Overworked, Crabby Judge with Docket Statistics Reports to Hand In

And your judge is probably eager to mark your case's discovery phase as complete and ready for trial, even if he or she is the next Oliver Wendell Holmes. So, don't put this off. Call my office at 646-827-4257.

It takes some time to get through the New York courts. And the subpoena must be served well in advance of the deposition and/or production date.

If your New York witness has the information you think he or she (or it... in the case of a corporation, union or other body) has, then this is important, and you don't want to be foreclosed from getting this discovery by the simple passage of time.So don't put this off.

Call my office at 646-827-4257 to start getting this done, and being ready for trial.

New York Subpoena for Actions Outside New York
Law Office of Allan R. Pearlman
116 West 23rd Street, Suite 5190
New York, NY 10011
646-827-4257
www.NYSubpoenaForActionsOutsideNY.com
www.NewYorkSubpoenaForActionsOutsideNewYork.com

Allan Pearlman is AV rated by Martindale-Hubbell peer review

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