Procedural skirmishes can affect the outcome of litigation. For example, if a plaintiff can deprive a defendant of access to proof from a nonparty witness whether within or outside the state, the scales may tip ever so slightly in favor of the plaintiff in a closely contested lawsuit.
While not a “sexy” issue, the New York Court of Appeals in Matter of John Kapon v. William I. Koch, resolved a conflict in the Appellate Division focusing on the standard and burdens when subpoenaing a nonparty for testimony under New York law. New York divides its Appellate Division into four departments based on geography. Two of the departments held that a litigant could not obtain nonparty discovery unless the requested discovery was relevant to the prosecution or defense of an action. In contrast, the two other departments held that the party issuing the subpoena must show that the disclosure could not be obtained from sources other than the nonparty, a far greater threshold to obtaining often critical discovery.
In Kapon, the Court of Appeals resolved the conflict within the Appellate Division and adopted the more liberal interpretation of nonparty discovery: “as long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Further, the Court explained in detail the burdens imposed of each party. The party issuing the subpoena must only satisfy a “minimal burden” of stating the reason the disclosure is sought either on the face of the subpoena or the notice accompanying it. Once this showing is made, a more onerous burden is imposed on a party seeking to quash the subpoena who must show that the discovery sought is “utterly irrelevant” or that the “futility of the process to uncover anything legitimate is inevitable or obvious.”
Nonparty discovery should be much easier in New York litigation whether sought within or outside the Empire State. As long as the proponent of the subpoena can articulate the relevance of the information sought, the subpoena should be upheld and the information produced.