Do I really Have to Comply with the Subpoena? Yes!

• Posted on: Dec 2 2019

It is not uncommon for a nonparty to a litigation to ask their attorney whether they must comply with a subpoena duly served upon them. As the court in Manswell v. Baptiste, 2019 N.Y. Slip Op. 29360 (Civ. Ct., Kings County, Nov. 20, 2019) (here), made clear, non-compliance is not an option.

A subpoena is a document that commands a person to testify at a trial or deposition and/or to produce documents specifically demanded. A subpoena duces tecum differs from a subpoena ad testificandum in that the former “requires production of books, papers and other things,” whereas the latter “requires the attendance of a person to give testimony.” CPLR § 2301; see also N.Y. Crim. Proc. Law § 610.10(3). It is served in the same manner as a summons and complaint, except under certain circumstances enumerated in the CPLR.

A proper subpoena will include a provision that explicitly states that the failure to comply with the commands therein is punishable as a contempt of court, making the recipient of the subpoena liable to the person on whose behalf the subpoena was issued for a penalty not to exceed one hundred fifty dollars and all damages sustained by reason of the failure to comply. See CPLR §§ 2308(a) (“Failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court”) and 5251 (“Refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court.”). In addition, refusal to comply with the subpoena may subject the contemnor to a sentence of imprisonment. CPLR § 2308(a).

Contempt is a drastic enforcement tool, which derives from statute, and is available to courts to punish parties for their failure to adhere and comply with the court’s mandates and to preserve the court’s authority over the conduct of litigation. Because of the possible consequences, including incarceration, contempt punishment is not readily granted. After all, “[c]ontempt punishment is a crime in and of itself and therefore is punished within the penal system just as any other crime, which carries with it the imposition of a sentence of incarceration to the contemnor.” Slip Op. at *3.

Since courts are reluctant to impose contempt punishment, whether by fine or the more drastic form of punishment, incarceration, particularly in civil matters, contempt punishment will not be granted “without the utmost of fastidious due diligence and due deliberation.…” Id. This is even more so when, as in Manswell, the matter before the court is the enforcement of a money judgment. As the Court noted, “[i]t is quite evident why the more drastic sentence of incarceration is so much more problematic to the courts in such an instance” – the avoidance of a de-facto “resurgence of the Debtors Prisons of old.…” Slip Op. at *3 and n.5.

In Manswell, the Court found that the defendants had engaged in “a blatant unabashed pattern of defiance” sufficient “to sustain an imposition of contempt punishment.” Slip Op. at *5. As businessmen and service providers, the Court deemed “their willful refusals to adhere to the mandates of the [judicial] branch … even more untenable” as “[i]t belies public policy and consumer protection to allow businesses to merely flout all judicial protocols [and] procedures to the detriment of public consumers” without consequence. Id.

Both Defendants have flouted all judicial protocols and procedures from the very beginning of the case, in failure to respond to the jurisdiction of the court, evidencing a trivialization of the inherent power of the civil court’s authority over their persons as operators of business marketed to the public.

Id. See also Home Heating Oil Corp. v. Parris, 2019 N.Y. Slip Op. 51663 (Civ. Ct., Kings County, Oct. 21, 2019) (here).

Speaking to the conduct at hand, the Court addressed the “pattern defiance” the defendants showed to the processes and rules of the Court:

Defendants failed to interpose an answer pursuant to summons and complaint duly served. Defendants never appeared to challenge default judgment filed and duly served. Defendants willfully refused to appear as well as to respond in any way shape or form to the duly served subpoena with its boldfaced warning as to the penal consequences of failure to comply. Defendants’ continued willful disregard of the orders and authority of court is ever so evident in their utter disregard of this instant matter to punish them, where it clearly states, again, in bold large font the consequence of non-compliance of the duly served subpoena can be imprisonment. Still, threat of incarceration was of no moment to these recalcitrant Defendants.

Id.

The Court concluded by summing up defendants’ conduct and the circumstances in which the conduct occurred (e.g., operating businesses that provide services to the public). In doing so, the Court made it clear that contempt punishment for failing to submit to a post-judgment examination and production of documents for the enforcement of a money of judgment would not be countenanced.

Defendants’ obvious disregard of all the court mandates from inception of this civil case up to and including failure to comply with the subpoena, a judicial mandate of the civil court, demonstrates refusal and willful neglect to obey this subpoena and rejection of the inherent power and authority of the civil court. Both judgment debtors D. Baptiste and K. Baptiste were duly served with post-judgment subpoenas by Plaintiff- judgment creditor for both testimony and document production “on all matters relevant to the satisfaction of such judgment.” The Second Department Appellate Division has long affirmed the holding of civil contempt punishment against judgment debtors for failing to submit to a post-judgment examination and production of documents for the enforcement of money judgments pursuant to CPLR Article 52. With emphasis: since these contemnor Defendants hold themselves out as engaging in business marketed to the public consumer, their willful refusal to comply with the post-judgment subpoena is even more so contemptible.

Id. at **5-6.

Consequently, the Court held the defendants in contempt, fining each of them $160.  However, the Court did not incarcerate the defendants.

Takeaway

“A party seeking disclosure from a nonparty witness need not move for a court order, but may proceed by serving a subpoena and notice.” McNulty v. McNulty, 81 A.D.2d 581, 581 (2d Dept. 1981) (citing, inter alia, CPLR §§ 3101(a)(4), 3106(b) and 3107). The nonparty witness or adversary may then apply for a protective order (id. (citing CPLR § 3103(a)) and/or move to quash the subpoena (CPLR § 2304) if he/she chooses to resist the examination or production. But, as demonstrated in Manswell, non-compliance with the subpoena is not an option.

Tagged with: Business Litigation, Commercial Litigation, Contempt, CPLR § 2308(A), Subpoena, Subpoena AD Testificandum, Subpoena Duces Tecum