New York State Court Clarifies the Standard for Obtaining Discovery from A Non-Party

On April 3, 2014, in Matter of Kapon v. Koch, 2014 N.Y. Slip Op 02327, the New York Court of Appeals clarified the standard for enforcing subpoenas to nonparties in civil litigation. There, William Koch commenced a fraud action in California and served nonparty subpoenas for deposition on two New Yorkers who moved to quash the subpoenas. The Court held that “so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty” and the subpoenaing party need not show unavailability from other sources. The Court noted that the subpoena must show on its face or on a notice accompanying it, “the circumstances or reasons such disclosure is sought or required.” This requirement helps “apprise a stranger to the litigation” of how the information it possess fits into the broader litigation.

This decision highlights the relative ease with which parties can obtain discovery from nonparties in a New York state court action. However, in federal court, the New York courts may still look to the availability of material from other sources when addressing the enforcement issue. See, e.g. Anwar v. Fairfield Greenwich Ltd, 2013 WL 6172443, at *3 (S.D.N.Y. Nov. 26, 2013); Solomon v. Nassau County, 274 F.R.D. 455, 461 (E.D.N.Y. 2011).