This decision has been referenced in a table in the New York Supplement.
Harry M. Forman, Attorney at Law, Bronx, for Defendant.
Maria D. Melendez, Sidley Austin LLP, New York City, for in Motion LLP (non-party).
JEANETTE RODRIGUEZ-MORICK, J.
In this domestic violence case, Defendant is charged with Penal Law § 120.00(1) and related charges for allegedly assaulting his wife, complainant Perla Guerrera (" Complainant" ), on July 13, 2012.
By motion dated May 31, 2013, non-party inMotion, Inc. (" inMotion" ) moves to quash Defendant's subpoena duces tecum, dated April 22, 2013. For the reasons that follow, the motion to quash is GRANTED.
Defendant served a subpoena duces tecum on inMotion (the " Subpoena" ) demanding the production of all records and correspondence concerning Complainant's consultation with inMotion. (Melendez Aff., Ex. 1.) InMotion is a not-for-profit organization providing free legal services to, primarily, low-income women who are the victims of domestic violence. (Henderson Aff. 1, ¶ 2.) During a five-month period, between September 24, 2012, and January 9, 2013, Complainant consulted inMotion. ( Id. at 1-2, ¶ 3.)
After service of the Subpoena, discussions between the parties about the propriety and scope of the Subpoena ensued. InMotion's pro bono counsel, Maria D. Melendez of Sidley Austin LLP, sent a letter to defense counsel, Harry M. Forman, objecting to the Subpoena on the grounds that it was vague, ambiguous, and overly broad. (Melendez Aff., Ex. 2.) By letter dated May 19, 2013, Mr. Forman faxed a response stating, in part, " [t]he legal way to object to a Subpoena is to make a motion in court to quash it." ( Id., Ex. 3.) Mr. Forman refused to narrow the scope of the Subpoena and demanded that inMotion comply with the Subpoena, move to quash the same, or face a motion for contempt. ( Id. ) On May 20, 2013, and May 21, 2013, inMotion's counsel tried twice more, by telephone, to get Mr. Forman to narrow the scope of the Subpoena. ( Id. at 1, ¶ 5.) While explicitly denying inMotion's request to limit the Subpoena's scope, Mr. Forman did indicate that he was interested in documents and correspondence between Complainant and inMotion relating to " immigration relief' services she purportedly sought from inMotion." ( Id. at 1-2, ¶ 5.)
In moving to quash the Subpoena, inMotion argues that it (1) lacks specificity, as it does not include factual proffers to show that the documents at issue will bear relevant and material evidence; and (2) seeks material protected by the attorney-client privilege. Mr. Forman's Affirmation in Opposition, belatedly filed and bereft of legal arguments, urges the Court to compel production of the subpoenaed materials. In the alternative, Mr. Forman requests an in camera inspection of inMotion's documents to determine whether such material includes allegations of domestic violence by the Complainant in support of immigration relief. (Aff. in Opp. 1.)
A. Relevant Legal Standards
Under C.P.L. § 240.20, defendants may demand discovery within the People's possession, custody, or control. See People v. Wright, 225 A.D.2d 430, 433 (1st Dep't 1996) (limiting the scope of demand for documents under § 240.20(1) to those within the People's possession, custody, or control, since the proper course for obtaining any other documents is by subpoena). However, when defendants seek documents that are not in the People's custody, C.P.L. § 610.20(3) controls and provides that defense counsel may subscribe and serve a subpoena duces tecum, without court order or permission, unless the subpoena is directed to certain entities, such as state agencies.
But the availability of such process does not vest defense counsel with the power to issue subpoenas simply to discover and inspect documents. See People v. Price, 100 Misc.2d 372, 373-74 (Bronx Co. Sup.Ct.1979) (noting that a subpoena duces tecum " has never been intended to provide a means of discovery" and contrasting this view with that of federal courts, which does allow for such discovery and inspection via subpoena). Defense counsel must have a good-faith basis to believe that " some factual predicate [exists] which would make it reasonably likely that the [requested information] will bear such fruit and that the quest for [such] content[ ] is not merely a desperate grasping at straw." People v. Gissendanner, 48 N.Y.2d 543, 550 (1979). " The proper purpose of a ...