Commercial Division Blog

Posted: March 25, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel, / Categories Commercial, Discovery/Disclosure

Subpoena Quashed Where It Sought to Ascertain Existence of Evidence

In a Decision dated January 26, 2022, in Tsunis Gasparis LLP v Ring, 2022 NY Slip Op 50070(U), Justice Emerson of the New York Supreme Court, Suffolk County, granted in part defendants’ motion for a protective order and for an order quashing subpoenas served on a CPA firm and banks. The Court explained:

A subpoena should not be quashed when the documents sought are "material and necessary" to the prosecution or defense of an action (El-Gamal v Sikander, Sup Ct, NY County, Sept. 30, 2014, Oing, J. [2014 WL 4952073], citing Matter of Kapon v Koch, 23 NY3d 32, 38). It is well-settled, however, that a subpoena dues tecum may not be used for the purpose of discovery or to ascertain the existence of evidence. Rather its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding (Id., citing Matter of Terry D., 81 NY2d 1042, 1044). An overly broad subpoena may not be used as a substitute for pretrial discovery (Id., citing Soho Generation of New York, Inc. v Tri-City Ins. Brokers, Inc., 236 AD2d 276, 277).

The court finds that the plaintiff's subpoenas are overly broad insofar as they seek documents beyond the six-year statute of limitations, documents related to Attonito & Ring (the defendant Christopher Ring's former law firm), and tax returns. In addition, the plaintiff has failed to make a strong showing that the information contained in the tax returns is indispensable to its claims and cannot be obtained from other sources (see, Levine v City Med. Assoc., P.C., 108 AD3d 746, 747). Accordingly, the motion is granted to the extent indicated.

Whether a discovery demand is overbroad will turn on the specific facts of the case and the allegations and defenses in the pleadings. Contact the Commercial Division Blog Committee at if you or a client have questions concerning a motion to compel in the Commercial Division.