N.Y. Civil Practice Law & Rules § 1311-a: Subpoena duces tecum

§ 1311-a. Subpoena duces tecum. 1. At any time before an action

pursuant to this article is commenced, the claiming authority may,

pursuant to the provisions of subdivision two of this section, apply

without 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 claiming

authority may commence an action pursuant to this article, and shall be

made in writing to a justice of the supreme court, or a judge of the

county court; and

(b) shall be supported by an affidavit, and such other written

documentation as may be submitted which: (i) sets forth the identity of

the claiming authority and certifies that the applicant is authorized to

make the application on the claiming authority's behalf; (ii)

demonstrates reasonable grounds to believe that the execution of the

subpoena would be reasonably likely to lead to information about the

nature and location of any debt or property against which a forfeiture

judgment may be enforced; (iii) states whether any other such subpoena

or provisional remedy has been previously sought or obtained with

respect to the subject matter of the subpoena or the matter to which it

relates; (iv) contains a factual statement which sets forth the basis

for the issuance of the subpoena, including a particular description of

the nature of the information sought to be obtained; (v) states whether

the issuance of the subpoena is sought without notice to any interested

party; and (vi) where the application seeks the issuance of the subpoena

without notice to any interested party, contains a statement setting

forth the factual basis for the claiming authority's belief that

providing notice of the application for the issuance of the subpoena may

result in any property being destroyed, removed from the jurisdiction of

the court, or otherwise being unavailable for forfeiture or to satisfy a

money judgment that may be entered in the forfeiture action, and may

interfere with law enforcement investigations or judicial proceedings.

3. An application made pursuant to this section may be granted, in the

court's discretion, upon a determination that the application meets the

requirements set forth in subdivision two of this section; provided,

however, that no such subpoena may be issued or directed to an attorney

with regard to privileged records or documents or attorney work-product

relating to a client. When a subpoena has been issued pursuant to this

section, the claiming authority shall have the right to possession of

the 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 shall

be determined with consideration for, among other things, (a) the good

cause shown by the party issuing the subpoena or in whose behalf the

subpoena is issued, (b) the rights and legitimate needs of the person

subpoenaed and (c) the feasibility and appropriateness of making copies

of the subpoenaed material. Where the application seeks a subpoena to

compel the production of an original record or document, the court in

its discretion may order the production of a certified transcript or

certified copy thereof.

4. Upon a determination pursuant to subdivision three of this section

that the subpoena should be granted, the court shall issue the subpoena,

seal all papers relating thereto, and direct that the recipient shall

not, except as otherwise ordered by the court, disclose the fact of

issuance or the subject of the subpoena to any person or entity;

provided, however, that the court may require that notice be given to

any interested party prior to the issuance of the subpoena, or at any

time thereafter, when: (a) an order granting a provisional remedy

pursuant to this article with respect to the subject matter of the

subpoena or the matter to which it relates has been served upon the

defendant whose books and records are the subject matter of the

subpoena, whether such books and records are in the possession of the

defendant or a third party; or (b) the court determines that providing

notice of the application (i) will not result in any property being

destroyed, removed from the jurisdiction of the court, or otherwise

being unavailable for forfeiture or to satisfy a money judgment that may

be entered in the forfeiture action and (ii) will not interfere with law

enforcement investigations or judicial proceedings. For purposes of this

section, "interested party" means any person whom the court determines

might have an interest in the property subject to the forfeiture action

brought 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 section

without notice to any interested party, the claiming authority shall

serve written notice of the fact and date of the issuance of the

subpoena duces tecum, and of the fact that information was obtained

thereby, upon any interested party not later than ninety days after the

date of compliance with such subpoena, or upon commencement of a

forfeiture action, whichever occurs first; provided, however, where the

action has not been commenced and upon a showing of good cause, service

of the notice required herein may be postponed by order of the court for

a reasonable period of time. The court, upon the filing of a motion by

any interested party served with such notice, may, in its discretion,

make available to such party or the party's counsel for inspection such

portions of the information obtained pursuant to the subpoena as the

court directs.

6. Nothing contained in this section shall be construed to diminish or

impair any right of subpoena or discovery that may otherwise be provided

for by law to the claiming authority or to a defendant in a forfeiture

action.