Court of Appeals Establishes Rule for Third Party Discovery Subpoena

In Kapon v Koch, ___NY 3d ___, 2014 WL 1315590, 2014 N.Y. Slip Op. 02327 (2014) the Court of Appeals, in an opinion by Judge Pigott, held that where a subpoena is served by a party seeking discovery from a nonparty pursuant to CPLR 3101(a)(4), (1) the subpoenaing party must first sufficiently state the "circumstances or reasons" underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), otherwise it may be challenged for facial insufficiency, and (2) the witness, in moving to quash, must establish either that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." (3) Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is "material and necessary" to the prosecution or defense of an action, i.e., that it is relevant.