APPEAL by the defendant, in an action for a divorce and ancillary relief, from an order of the Supreme Court (Carol MacKenzie, J.), dated September 18, 2008, and entered in Suffolk County, which granted the plaintiff's motion to quash six subpoenas duces tecum served by the defendant on nonparty financial institutions and denied her cross motion (a) pursuant to CPLR 3124 to compel the plaintiff to comply with discovery demands, (b) for an award of an interim counsel fee, and (c) to direct the plaintiff to pay her one half of the proceeds from the July 2008 rental of the parties' vacation home.
The opinion of the court was delivered by: Angiolillo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ANITA R. FLORIO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS & PLUMMER E. LOTT, JJ.
On this appeal we consider principles governing the discovery of documents from nonparties pursuant to CPLR 3101(a)(4), which provides that the party seeking disclosure must give notice stating "the circumstances or reasons such disclosure is sought or required" from the nonparty. Specifically, the question arises whether a party must establish the existence of "special circumstances" warranting discovery from a nonparty in order to successfully oppose a motion to quash a subpoena duces tecum served on that nonparty. Many of our cases continued to apply that standard after CPLR 3101(a)(4) was amended to remove the requirement that discovery from a nonparty be obtained only "where the court on motion determines that there are adequate special circumstances." We hereby disapprove the further application of the "special circumstances" standard in this context. We, nevertheless, look behind that language in our cases and find underlying considerations which are appropriate and relevant to the trial court's exercise of its discretion in determining whether a request for discovery from a nonparty should go forward or be quashed. Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to quash the subpoenas at issue.
The Discovery Demands, Subpoenas, and Motion to Quash
By preliminary conference order dated June 19, 2008, the parties stipulated to a schedule which required the completion of discovery and inspection by September 15, 2008. On July 11, 2008, the parties served each other with their respective notices of discovery and inspection. In addition, on July 18, 2008, the defendant served subpoenas duces tecum on five nonparty financial institutions, demanding production of documents related to any accounts held by the plaintiff, and on July 21, 2008, the defendant served an amended subpoena on one of the five institutions. The following notice appears on the face of each subpoena: "The circumstances or reasons said disclosure is sought or required are to identify and value certain marital property, which is material and necessary in the prosecution or defense of this action." Copies of the six subpoenas were served on the plaintiff.
In correspondence between counsel, the plaintiff demanded the withdrawal of the subpoenas, contending that discovery from nonparties was inappropriate prior to completion of discovery between the parties and in the absence of a showing of "special circumstances." The defendant's counsel responded that discovery from nonparties was appropriate at any time after the commencement of the action. In light of the defendant's refusal to withdraw the subpoenas, the plaintiff moved to quash them on July 30, 2008. On August 18, 2008, the defendant filed her cross motion, inter alia, pursuant to CPLR 3124 to compel the plaintiff to comply with her document demand dated July 11, 2008, and submitted arguments in opposition to the plaintiff's motion to quash. In her papers, the defendant noted that three of the five financial institutions, First Republic Bank, Smith Barney/Citigroup Global Markets, Inc., and Citicorp Credit Services, Inc., had produced the demanded documents in response to her subpoenas. While the motion and cross motion were sub judice, the plaintiff's counsel notified the defendant's counsel by letter that the plaintiff's documents in response to the defendant's discovery demand had been delivered to a copy service for reproduction and transfer onto a compact disk, and that in light of the enormous volume of documents, the plaintiff estimated that reproduction would not be complete until September 16, 2008.
On September 18, 2008, the Supreme Court issued the order appealed from, granting the plaintiff's motion to quash on the ground that the defendant had failed to tender a sufficient explanation why the discovery from nonparties was necessary. The Supreme Court also denied the defendant's cross motion in its entirety. With respect to that branch of the cross motion which was to compel the plaintiff to comply with the defendant's discovery demand, the Supreme Court noted that the "plaintiff has timely responded . . . as of this date."
In her appellate brief, the defendant concedes that, on September 24, 2008, she received from the plaintiff three compact disks containing approximately 27,000 pages of documents responsive to her document demand, as the plaintiff's counsel had promised in his earlier correspondence. The plaintiff's production of these documents thus renders academic the defendant's appeal from so much of the order as denied that branch of her cross motion which was pursuant to CPLR 3124 to compel the plaintiff to comply. Similarly, the document production by three of the five nonparty financial institutions renders academic the defendant's appeal from so much of the order as granted that branch of the plaintiff's motion which was to quash the subpoenas served on those three entities. Accordingly, those portions of the defendant's appeal must be dismissed (see Bajrovik v Jeff Anders Trucking, 52 AD3d 553; Schmidt v Maiorino, 209 AD2d 683, 684).
We turn now to the defendant's contention that the Supreme Court improperly granted that branch of the plaintiff's motion which was to quash the subpoenas she served on the two remaining nonparty financial institutions, American Express and Principal ...