March 25, 2014

Report of the New York County Lawyers’ Association Civil Court Practice Section Proposing that Third Parties Producing Documents for Trial In Special Proceedings Be Permitted, Absent Objection, To Authenticate Documents By Certification Without A Live Witness

Proposal

That a new section be added to the New York Civil Practice Law and Rules (CPLR) permitting third parties producing documents for trial of Special Proceedings to avoid, absent objection, having to attend court solely for the purpose of authenticating the documents produced. The provision will only apply where the party against whom the evidence is to be offered is represented by counsel, in order to protect to the rights of self-represented litigants.

Background

In 2002, the CPLR was amended to provide for a more expeditious method of authenticating business records being offered in evidence in plenary actions. Previously, in order to enter third-party documents into evidence as business records, the proponent had to either depose the third party or subpoena the third party for trial to establish that the documents met the requirements of business records. The 2002 amendments, codified at CPLR R. 3122-a, established a procedure by which documents produced by third parties in discovery could be offered at trial as business records if accompanied by a sworn certification that the documents meet the requirements of a business record. Absent objection, the certification and documents could be admitted into evidence to authenticate them as business records.

The advantages of these procedures in plenary actions were described by the sponsors as follows:

It is anticipated that such changes will greatly reduce the inconvenience presently suffered by non-party witnesses, who are often made to appear at an unnecessary deposition, possibly at a distant location, with their original records in tow…

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This certification procedure will qualify the non-party business records for admission at trial as such, in a manner similar to that now authorized for hospital records by CPLR 2306; and, where given, the personal appearance of a non-party to lay a foundation for the admission will not be necessary. This procedure should be particularly useful for introduction of routinely prepared business records and other documents, such as, utility, telephone and bank records, statements and invoices.

Sponsors’ Report, OCA Memorandum # 96, 2002 New York State Legislative Annual – 2002, Ch. 575.

Special Proceedings

“Special Proceedings” are governed by Article 4 of the CPLR which provides a mechanism for the more expeditious resolution of certain authorized civil proceedings, CPLR § 103(b). There are a number of these Special Proceedings authorized by statute, including those that relate to challenging the action or determination of a governmental officer or agency and various landlord-tenant proceedings.

In Special Proceedings, discovery is not permitted without leave of Court, CPLR § 408.

Third-party documents may be subpoenaed for trial; however, under current procedures in Special Proceedings, unless the other parties agree, the party seeking to offer in evidence a non- party’s business records must subpoena a representative of the non-party to show up in court, bring the documents, and testify as to their authenticity and nature.

The Proposal

The proposal is to insert a new Rule in the CPLR that provides that documents produced pursuant to a trial subpoena duces tecum in Special Proceedings may be accompanied by a sworn certification that qualifies the documents as business records. The provision will only apply where the party against whom the evidence is to be offered is represented by counsel, in order to protect to the rights of self-represented litigants. In summary, the certification should state that the affiant is the authorized custodian of the records; the documents are accurate copies of the documents called for in the subpoena and are all the documents subpoenaed; the documents were made in the regular course of business, at or about the time of the matter recorded therein or a reasonable time thereafter; and it was the regular course of business to make such records. Such a certification would be admissible as to the matters set forth and be presumed true.

Opposing parties are given an opportunity to object. The subpoenaing party will be required to give advance notice that it will be offering such certified documents and indicate where they may be inspected. Objections to admission of the certified documents may be made at any time. If objection is made at the trial or hearing, and the custodian has not appeared, the court may grant a continuance for the subpoenaed party to appear and testify.

Given the unavailability of pre-trial discovery in Special Proceedings (absent court order), it is not feasible to extend all of the provisions of CPLR 3122-a to such proceedings. This proposal should avoid, in many cases, unnecessary burdens on non-parties whose records have been subpoenaed for trial, principally in Housing Court. While certain non-parties (such as KeySpan Corporation, the fifth largest distributor of natural gas in the United States with its headquarters in Brooklyn) are large enough to have full-time employees whose job it is to show up in court to testify, the burden also falls on smaller organizations. The current requirement of a live body on the stand certainly complicates the life of the attorneys trying to present evidence and who must keep in touch with non-party representatives and juggle schedules.

Suggested language for the new CPLR section is attached as Appendix A.

APPENDIX A

Suggested Legislative Language

410A. Admissibility of certified business records.

(a) Business records produced pursuant to a trial subpoena at least five days previous to the trial may be accompanied by a certification, sworn in the form of an affidavit and subscribed by the custodian or other qualified witness with the responsibility of maintaining the records, stating in substance each of the following:

The affiant is the duly authorized custodian or other qualified witness and has authority to make the certification;

To the best of the affiant’s knowledge, after reasonable inquiry, the records or copies thereof are accurate versions of the documents described in the subpoena duces tecum that are in the possession, custody or control of the person receiving the subpoena;

To the best of the affiant’s knowledge, after reasonable inquiry, the records or copies produced represent all the documents described in the subpoena duces tecum, or if they do not represent a complete set of the documents subpoenaed, an explanation of which documents are missing and a reason for their absence is provided; and

The records or copies produced were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records.

(b) A certification made in compliance with subdivision (a) is admissible as to the matters set forth therein only against a party represented by counsel and as to such matters shall be presumed true. When more than one person has knowledge of the facts, more than one certification may be made.

(c) A party intending to offer at a trial or hearing business records authenticated by certification subscribed pursuant to this rule shall give at least three days’ advance notice of the intent and specify the place where such records may be inspected at reasonable times. Objection to the offer of business records may be asserted in any instance, may be asserted by notice or at trial or hearing, and shall not be subject to imposition of any penalty or sanction. Unless objection is made pursuant to this subdivision, business records certified in accordance with this rule shall be deemed to have satisfied the requirements of subdivision (a) of Rule 4518. Notwithstanding the issuance of such objection to same, a party may subpoena the custodian to appear and testify and require the production of original business records at the trial or hearing. If the objection is made at the trial or hearing and the custodian will not have appeared, the court, in its sound discretion, may grant a continuance for the appearance and testimony of the subpoenaed custodian.

Nothing in this rule shall be construed as to supplant or modify the requirements of Rule 2307 governing the issuance and manner of permissible compliance with a subpoena duces tecum to be served upon a library, or a department or bureau of a municipal corporation or of the state.