You are an accountant to a small business, JS Co. LLC, located in Rockland County, and you provide bookkeeping services for JS Co. LLC as an independent contractor, Keep Your Books, LLC. You also have been preparing the business’s corporate tax returns, as well as the personal tax returns of the principal and sole owner of the business, John Smith. A vendor of JS Co. LLC asserts that the company has failed to remit payment on unpaid invoices, although Smith has objected to these unpaid invoices stating that the company’s accountant and bookkeeper has certainly remitted payment. Can the vendor serve a subpoena upon Keep Your Books, LLC to verify or contradict Smith’s position? And if so, does Keep Your Books, LLC need to reply? The answer to both of these questions is yes.
A subpoena duces tecum is a specific type of subpoena, which can be served upon a non-party to a litigation proceeding and requires the production of books, papers, and other things (N.Y. CPLR § 2301). This subpoena can be served without a court order by, among others, an attorney of record for a party to a lawsuit, or it can be served by the court.
Pursuant to CPLR § 2303, a subpoena duces tecum is served in the same manner as a summons, except that proof of service of the subpoena does not need to be filed with the court. Also, each subpoena must be accompanied by traveling expenses and a witness fee, even if it is a subpoena duces tecum, which requires production of books and things, not attendance. A copy of the subpoena must be duly served upon all attorneys of record for the pending lawsuit.
Failure to comply with a subpoena is punishable as a contempt of court, with the potential imposition of a monetary penalty to the person on whose behalf the subpoena was issued. Despite Smith’s assertion that the invoices have been paid by the accountant/bookkeeper, the vendor would have the right to serve a subpoena upon the party who would, conceivably, have the most knowledge and information relating to payment of the invoice, including any records showing payment that was remitted.
In the alternative, a person receiving a subpoena duces tecum has twenty (20) days to object to the subpoena by serving a response which shall state, with reasonable particularity, the reasons for each objection. (NY CPLR § 3122). Moreover, a motion to quash the subpoena or for a protective order can be made to the court in which the subpoena is returnable for consideration.
If you receive a subpoena duces tecum or subpoena ad testificandum (for your testimony) in a lawsuit, be sure to advise counsel immediately of its service. The twenty (20) day deadline to respond is rather short in practice upon receipt, review, and gathering of the responsive documentation. Moreover, the subpoena should be reviewed by counsel to see whether there are appropriate objections to be made as to the scope of the subpoena or the availability of responsive documentation through other means that would be less burdensome than seeking the same from the subpoenaed party. Notwithstanding the foregoing, the subpoena should not be ignored.
Disclaimer: The information contained in this post is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and communications. Contacting us, however, does not create an attorney-client relationship.