On November 21, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Fund.com, Inc. v Advisorshares Inv., LLC, 2014 NY Slip Op. 33022(U), refusing to quash a subpoena under the doctrine of legal immunity from service.
In Fund.com, the plaintiff served its former CEO (Webster), a non-party, with a subpoena duces tecum. Because the plaintiff was unsuccessful in serving Webster at his home in New Jersey, it served him in New York at his deposition. Webster moved to quash, arguing, among other things, that service during his deposition was improper under the common law doctrine of legal immunity from service (the “Doctrine”).
CPLR 2303 and 2308 provide that a subpoena may be served by delivering it within the state to the person to be served. However, under the Doctrine, nonresidents may be protected from civil process when they voluntarily appear in New York to participate in legal proceedings, either as parties or witnesses.
The Doctrine encourages nonresidents to enter New York to participate in legal proceedings without fear that they will be served with process that would expose that person to new or additional liabilities. The privilege of immunity is not a privilege personal to the witness but a privilege belonging to the court. Its purpose is to arm the court with a tool to promote the swift and efficient administration of justice. The Doctrine applies to the service of summonses and complaints, not subpoenas.
The Doctrine does not apply when a person is served while attending a legal proceeding in New York, if the service concerns that very case. To qualify for immunity, three requirements must be met: (1) he or she is in fact a nonresident, (2) whose sole purpose in appearing in New York is to attend the judicial proceedings, and (3) there were no other means of acquiring jurisdiction over his or her person other than personal service in New York.
Mr. Webster was served with a subpoena in connection with the very case he was being deposed for. Mr. Webster cites Weichert v Kimber as standing for the proposition that nonresidents are immune to civil process when they voluntarily appear in New York to participate in legal proceedings, either as parties or witnesses. In Weichert, as the defendant was leaving a courtroom after an action against him was dismissed, he was served with a summons for another action. Not only was Mr. Webster served with a subpoena to produce documents, and not with a summons or complaint regarding another action, the documents requested are for the litigation in which he was deposed. Mr. Webster was not served with a summons or complaint at the EBT but with a subpoena duces tecum. When a person is served with a subpoena ad testificandum, immunity does not apply because the subpoena ad testificandum does not, in itself, subject a person to new or additional liabilities – it merely requires them to appear and testify. Just as a subpoena ad testificandum does not expose a person to new or additional liabilities, nor does a subpoena duces tecum. It only requires that Mr. Webster produce certain documents.
Mr. Webster can not establish all three requirements necessary to qualify for immunity. Mr. Webster could have been served at his residence in New Jersey, and so fails to meet the third prong, that there were no other means of acquiring jurisdiction over his or her person other than personal service in New York.
(Internal quotations and citations omitted)