N.Y. CPLR § 1311-A

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 1311-A Subpoena duces tecum. 1 § 1311-a. Subpoena duces tecum. 1. At any time before an actionpursuant to this article is commenced, the claiming authority may,pursuant to the provisions of subdivision two of this section, applywithout notice for the issuance of a subpoena duces tecum.2. An application for a subpoena duces tecum pursuant to this section:(a) shall be made in the judicial district in which the claimingauthority may commence an action pursuant to this article, and shall bemade in writing to a justice of the supreme court, or a judge of thecounty court; and(b) shall be supported by an affidavit, and such other writtendocumentation as may be submitted which: (i) sets forth the identity ofthe claiming authority and certifies that the applicant is authorized tomake the application on the claiming authority's behalf; (ii)demonstrates reasonable grounds to believe that the execution of thesubpoena would be reasonably likely to lead to information about thenature and location of any debt or property against which a forfeiturejudgment may be enforced; (iii) states whether any other such subpoenaor provisional remedy has been previously sought or obtained withrespect to the subject matter of the subpoena or the matter to which itrelates; (iv) contains a factual statement which sets forth the basisfor the issuance of the subpoena, including a particular description ofthe nature of the information sought to be obtained; (v) states whetherthe issuance of the subpoena is sought without notice to any interestedparty; and (vi) where the application seeks the issuance of the subpoenawithout notice to any interested party, contains a statement settingforth the factual basis for the claiming authority's belief thatproviding notice of the application for the of the subpoenawithout notice to any interested party, contains a statement settingforth the factual basis for the claiming authority's belief thatproviding notice of the application for the issuance of the subpoena mayresult in any property being destroyed, removed from the jurisdiction ofthe court, or otherwise being unavailable for forfeiture or to satisfy amoney judgment that may be entered in the forfeiture action, and mayinterfere with law enforcement investigations or judicial proceedings.3. An application made pursuant to this section may be granted, in thecourt's discretion, upon a determination that the application meets therequirements set forth in subdivision two of this section; provided,however, that no such subpoena may be issued or directed to an attorneywith regard to privileged records or documents or attorney work-productrelating to a client. When a subpoena has been issued pursuant to thissection, the claiming authority shall have the right to possession ofthe subpoenaed material. The possession shall be for a period of time,and on such reasonable terms and conditions, as the court may direct.The reasonableness of such possession, time, terms and conditions shallbe determined with consideration for, among other things, (a) the goodcause shown by the party issuing the subpoena or in whose behalf thesubpoena is issued, (b) the rights and legitimate needs of the personsubpoenaed and (c) the feasibility and appropriateness of making copiesof the subpoenaed material. Where the application seeks a subpoena tocompel the production of an original record or document, the court inits discretion may order the production of a certified transcript orcertified copy thereof.4. Upon a determination pursuant to subdivision three of this sectionthat the subpoena should be granted, the court shall issue the subpoena,seal all papers relating thereto, and direct that the recipie termination pursuant to subdivision three of this sectionthat the subpoena should be granted, the court shall issue the subpoena,seal all papers relating thereto, and direct that the recipient shallnot, except as otherwise ordered by the court, disclose the fact ofissuance or the subject of the subpoena to any person or entity;provided, however, that the court may require that notice be given toany interested party prior to the issuance of the subpoena, or at anytime thereafter, when: (a) an order granting a provisional remedypursuant to this article with respect to the subject matter of thesubpoena or the matter to which it relates has been served upon thedefendant whose books and records are the subject matter of thesubpoena, whether such books and records are in the possession of thedefendant or a --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only third party; or (b) the court determines that providingnotice of the application (i) will not result in any property beingdestroyed, removed from the jurisdiction of the court, or otherwisebeing unavailable for forfeiture or to satisfy a money judgment that maybe entered in the forfeiture action and (ii) will not interfere with lawenforcement investigations or judicial proceedings. For purposes of thissection, "interested party" means any person whom the court determinesmight have an interest in the property subject to the forfeiture actionbrought pursuant to this article.5. Notwithstanding the provisions of subdivision four of this section,where a subpoena duces tecum has been issued pursuant to this sectionwithout notice to any interested party, the claiming authority shallserve written notice of the fact and date of the issuance of thesubpoena duces tecum, and of the fact that information was obtainedthereby, upon any interested party not later than ninety days aft written notice of the fact and date of the issuance of thesubpoena duces tecum, and of the fact that information was obtainedthereby, upon any interested party not later than ninety days after thedate of compliance with such subpoena, or upon commencement of aforfeiture action, whichever occurs first; provided, however, where theaction has not been commenced and upon a showing of good cause, serviceof the notice required herein may be postponed by order of the court fora reasonable period of time. The court, upon the filing of a motion byany interested party served with such notice, may, in its discretion,make available to such party or the party's counsel for inspection suchportions of the information obtained pursuant to the subpoena as thecourt directs.6. Nothing contained in this section shall be construed to diminish orimpair any right of subpoena or discovery that may otherwise be providedfor by law to the claiming authority or to a defendant in a forfeitureaction. CPLR § 1311-A Page 2