N.Y. Civil Practice Law & Rules § 3119: Uniform interstate depositions and discovery

§ 3119. Uniform interstate depositions and discovery. (a) Definitions.

For purposes of this section:

(1) "Out-of-state subpoena" means a subpoena issued under authority of

a court of record of a state other than this state.

(2) "Person" means an individual, corporation, business trust, estate,

trust, partnership, limited liability company, association, joint

venture, public corporation, government, or governmental subdivision,

agency or instrumentality, or any other legal or commercial entity.

(3) "State" means a state of the United States, the District of

Columbia, Puerto Rico, the United States Virgin Islands, or any

territory or insular possession subject to the jurisdiction of the

United States.

(4) "Subpoena" means a document, however denominated, issued under

authority of a court of record requiring a person to:

(i) attend and give testimony at a deposition;

(ii) produce and permit inspection and copying of designated books,

documents, records, electronically stored information, or tangible

things in the possession, custody or control of the person; or

(iii) permit inspection of premises under the control of the person.

(5) "Legally protected health activity" shall have the same meaning as

defined by section 570.17 of the criminal procedure law.

(6) "Gender-affirming care" shall have the same meaning as defined by

section 570.17 of the criminal procedure law.

(7) "Reproductive health care" shall have the same meaning as defined

by section 570.17 of the criminal procedure law.

(b) Issuance of subpoena. (1) To request issuance of a subpoena under

this section, a party must submit an out-of-state subpoena to the county

clerk in the county in which discovery is sought to be conducted in this

state. A request for the issuance of a subpoena under this section does

not constitute an appearance in the courts of this state except as

provided in subparagraph (iii) of paragraph two of this subdivision.

(2) (i) Any request for the issuance of a subpoena under paragraph one

of this subdivision and any subpoena issued under paragraph five of this

subdivision shall include an affirmation under penalty of perjury that

such subpoena either:

(A) is not related to any investigation or proceeding that seeks to

impose civil or criminal liability, professional sanctions, or any other

legal consequences upon a person for any legally protected health

activity; or

(B) is related to such an investigation or proceeding, but falls

within an exception provided in subparagraph (i) of paragraph one of

subdivision (g) of this section. Such affirmation shall identify which

exception applies to the request.

(ii) The chief administrator of the courts shall promulgate a

standardized form for any affirmation submitted pursuant to this

paragraph.

(iii) A party that submits a false affirmation pursuant to this

section shall be subject to the jurisdiction of the courts of this state

for any suit, penalties, or damages arising out of such false

affirmation. A court shall assess a statutory penalty of fifteen

thousand dollars per violation if the court finds such false affirmation

was made intentionally, knowingly, willingly or recklessly. This shall

be in addition to any other legal or equitable remedy lawfully

available. The attorney general may commence an action or special

proceeding for damages and/or penalties against any party that submits a

false affirmation pursuant to this subparagraph.

(iv) Any action or special proceeding brought by the attorney general

pursuant to this paragraph shall be commenced within six years of either

(A) the date on which the inquiry, investigation, subpoena, or summons

that such false affirmation accompanied was filed with the county clerk,

for subpoenas requested pursuant to paragraph one of this subdivision;

or (B) the date on which the subpoena was issued, for subpoenas issued

pursuant to paragraph five of this subdivision.

(3) Except as provided by subdivision (g) of this section, when a

party submits an out-of-state subpoena to the county clerk, the clerk,

in accordance with that court's procedure and subject to the provisions

of article twenty-three of this chapter, shall promptly issue a subpoena

for service upon the person to which the out-of-state subpoena is

directed.

(4) A subpoena under paragraph three of this subdivision must:

(i) incorporate the terms used in the out-of-state subpoena;

(ii) contain or be accompanied by the names, addresses and telephone

numbers of all counsel of record in the proceeding to which the subpoena

relates and of any party not represented by counsel; and

(iii) include the affirmation required by paragraph two of this

subdivision.

(5) Notwithstanding paragraph one of this subdivision, and except as

provided by subdivision (g) of this section, if a party to an

out-of-state proceeding retains an attorney licensed to practice in this

state, and that attorney receives the original or a true copy of an

out-of-state subpoena, the attorney may issue a subpoena under this

section.

(c) Service of subpoena. A subpoena issued under this section must be

served in compliance with sections two thousand three hundred two and

two thousand three hundred three of this chapter.

(d) Deposition, production and inspection. Sections two thousand three

hundred three, two thousand three hundred five, two thousand three

hundred six, two thousand three hundred seven, two thousand three

hundred eight and this article apply to subpoenas issued under

subdivision (b) of this section.

(e) Application to court. An application to the court for a protective

order or to enforce, quash, or modify a subpoena issued under this

section must comply with the rules or statutes of this state and be

submitted to the court in the county in which discovery is to be

conducted.

(f) Uniformity of application and construction. Except as provided in

subdivision (g) of this section, in applying and constructing this

uniform act, consideration shall be given to the need to promote

uniformity of the law with respect to its subject matter among states

that enact it.

(g) Out-of-state proceedings regarding legally protected health

activities. Notwithstanding any other provisions of this section or any

other law, no court, county clerk, or attorney licensed to practice in

this state shall issue a subpoena under this section in connection with

an out-of-state proceeding relating to any legally protected health

activity, unless:

(1) such out-of-state proceeding (i) sounds in tort or contract, (ii)

is actionable, in an equivalent or similar manner, under the laws of

this state, and (iii) was brought by the person who received

reproductive health care or gender-affirming care, or the person's legal

representative, so long as the person gives express consent unless

express consent is not feasible due to their injury or death; and

(2) the subpoena is accompanied by an affirmation compliant with

paragraph two of subdivision (b) of this section.