If you find yourself involved in a New York personal injury case, there’s every possibility you’ll hear plenty of legal jargon that can leave you confused, and one such term is “subpoena.” Often, when these cases reach court, there’s a need to serve a subpoena on one or more parties. While this may sound intimidating, understanding what a subpoena is, its purpose, and your obligations if you receive one can be beneficial.
You may also benefit by looking at the rules for serving a subpoena in New York, what happens if you ignore one, and how to quash a subpoena in NY.
What Is a Subpoena?
A New York subpoena is a legal document that compels an individual or an entity to do something, as required by the law. The difference between a subpoena and a summons is that while a summons formally notifies you that someone is suing you, a subpoena isn’t about you being a party to a lawsuit. Instead, it’s a tool that personal injury attorneys typically use for gathering evidence during the discovery process.
There are two main types of subpoenas you’ll encounter in a personal injury case.
- Subpoena ad testificandum. Simply put, this is the legal way of saying “subpoena to testify.” A subpoena ad testificandum is an order that requires an individual to appear at a specific time and place to give sworn testimony. This could be for a deposition, a court hearing, or a trial.
- Subpoena duces tecum. Subpoena duces tecum essentially means “subpoena for records.” This type of subpoena orders a person or entity to produce specific documents, records, or other evidence. A subpoena duces tecum in New York is incredibly common when it comes to personal injury cases because it helps obtain medical records, employment records, police reports, surveillance footage, and other information related to a case.
There are instances when a single subpoena combines both functions, requiring someone to provide testimony and produce required documents.
Why Are Subpoenas Necessary in a Personal Injury Case?
Imagine you’re in a car accident in Queens, and a witness who saw the whole incident has since moved out of the city or does not want to get involved. Alternatively, the other driver is denying liability, and you need to prove they were at fault. A subpoena is how your attorney can legally require a witness to provide a statement or testify.
In the same vein, a defendant’s attorney might need to see your medical history to argue that your injuries were pre-existing. Since this is private information, they can’t get access to it easily. As a result, they use a subpoena to legally obtain your medical records from a hospital or doctor’s office.
Keep in mind that subpoenas are about fairness and ensuring that all relevant information is available to both sides, which makes them a powerful and essential part of the legal landscape.
Who Can You Subpoena?
You can subpoena any individual or entity that holds documents, records, or physical evidence relevant to your personal injury case, as well as any person who is a witness or a party to the case. These include:
- Eyewitnesses
- Expert witnesses
- Coworkers
- Emergency responders
- Medical professionals and healthcare providers
- Other parties involved in the case
- Businesses and organizations
- Property owners
How to Get a Subpoena in New York?
It’s common for people who are not accustomed to the law to wonder, “Does a subpoena need to be signed by a judge in New York?” The short answer is yes. The process begins by visiting the Clerk’s office at the county court in question and filling out a subpoena form, or your personal injury attorney will handle this for you. Then, the clerk presents the subpoena to a judge for his/her signature.
The onus of arranging a subpoena’s service rests upon you, and you also need to pay witness fees and potential travel expenses for the individual you subpoena.
The Fees Involved
Whether you serve a subpoena duces tecum or subpoena ad testificandum, you need to pay the witness a per-day witness fee of $15. If the witness you serve lives outside of NYC, you’ll also need to pay 23 cents per mile for the witness to travel to and from the place of attendance. If you don’t make this payment in time, the witness has no obligation to comply.
Serving a Subpoena in NY Personal Injury Cases
If you wish to serve a subpoena in New York, you may get any individual who is not a police officer and over 18 years old to do the needful. This could be a relative or friend. You typically need to serve a duces tecum or an ad testificandum to an individual by hand, although you might be able to use other methods like Conspicuous Service or Substituted Service under specific circumstances.
If you plan to serve a subpoena to a corporation or partnership in New York, you need to identify a suitable recipient first. This could be a director, a managing agent, a partner, or an officer of the entity in question. Then you need to serve the subpoena to the identified recipient in person.
What Happens if You Get a Subpoena?
Receiving a subpoena can be a nerve-wracking experience, but there’s no need to panic. After all, nobody is making you a party to a lawsuit, and you only need to testify or provide the required documents. If you get a subpoena, this is what you should ideally do.
- Read it carefully. Look for the name of the case, the court, and the date and time you have to appear or produce documents, and pay close attention to any requested information.
- Contact an attorney. If you are not a party to a lawsuit but have received a subpoena, it is in your best interest to consult with an attorney. They can help you understand your obligations, ensure the subpoena is valid, and advise you on how to respond.
- Do not destroy documents. The moment you receive a subpoena for documents, you have a legal obligation to preserve all relevant information. Destroying or altering documents can lead to serious legal consequences, including contempt of court.
- Comply with the request. The simplest path forward is to comply. If a subpoena asks you to testify, you should appear on the specified date. If it asks for documents, you must gather and produce them.
How to Quash a Subpoena in NY?
There are situations in which challenging subpoenas is possible, and this is where a motion to quash enters the picture. In this scenario, your attorney needs to file a motion with the court promptly, asking it to withdraw or modify the subpoena. Common reasons to quash a subpoena include:
- It seeks confidential or privileged information (like your therapist’s notes).
- It is overly broad and asks for documents that aren’t relevant to the case.
- It imposes an undue burden or expense on the recipient.
- Its service was improper.
What Happens if You Ignore a Subpoena in New York?
Ignoring a valid subpoena is not really an option because it can come with severe consequences. Failure to comply with a court-issued subpoena is contempt of court, and a judge can impose a variety of penalties.
- Fines. A judge can order you to pay a penalty for your non-compliance, as well as the legal fees incurred by the party that had to go to court to enforce the subpoena.
- Warrant for your arrest. In some cases, a judge can issue a warrant to have a sheriff bring you into court to comply. While this is unlikely in most civil cases, it is a possibility.
- Striking of pleadings. If you are a party to the lawsuit and you ignore a subpoena, the judge can strike your pleadings, which could mean automatically losing your case.
Conclusion
The use of a subpoena for witness testimony in New York personal injury cases is fairly common, as is using it to gather required documentary evidence. Fortunately, this crucial part of the discovery process ensures bringing to light all the facts and evidence relevant to a case. Whether you wish to serve a New York subpoena or have received one, remember that getting in touch with an experienced personal injury attorney can equip you with all the information you need to proceed.