Chapter I - Subchapter D

§1-43 Subpoenas.

Practice and procedure

Subpoenas duces tecum are to be issued by an ALJ. Transit Auth. v. M. K., OATH Index No. 1355/17 (Feb. 14, 2018), aff’d, NYC Civ. Serv. Comm’n Case No. 2018-0275 (Oct. 2, 2018).

Cautioning pro se litigant against sua sponte issuance of subpoenas in contravention of this tribunal’s Rules of Practice which require application to the trial judge for the issuance of a subpoena. Matter of Lasciak, OATH Index No. 2080/16 (Dec. 30, 2016), adopted in part, rejected in part, Loft Bd. Oder No. 4654 (Mar. 16, 2016).

Respondent’s requests for subpoenas is granted in part and denied in part without prejudice. Respondent sought to produce 12 witnesses to testify that official union duties are not the same as correction officer duties. ALJ found it unnecessary to have multiple witnesses give cumulative testimony on the same subjects. She allowed one witness with personal knowledge of the subject to be subpoenaed. Respondent could also testify. If not cumulative, respondent could call additional witnesses who agreed to testify regarding these matters. ALJ would exclude witnesses who would be called to testify in support of claims (selective enforcement) that this tribunal lacks jurisdiction to hear. The decision was without prejudice for respondent to renew at trial if she could make a showing that the witnesses’ testimony would be relevant. Dep’t of Correction v. LaSonde, OATH Index No. 2526/11, mem. dec. (July 8, 2011).

In vehicle retention case, respondent vehicle owner's request for subpoena ad testificandum requiring arresting officer to testify denied because requiring the appearance of the arresting officer would run contrary to the letter and spirit of the Krimstock Order, sufficient documentary evidence was available in lieu of such live testimony, and the respondent remained free to present his own defense through other witnesses, documentary evidence, or his own testimony. Police Dep't v. McBrien, OATH Index No. 1058/09, mem. dec. (Oct. 2, 2008).

Non-party in receipt of subpoena should make full production initially, or should clearly state that it is withholding certain documents, enunciating the legal grounds for so doing. At that point, well in advance of trial, counsel for the issuing party can bring the matter to trial judge's attention, as subsection (d) of this rule requires. Dep't of Sanitation v. Lowe, OATH Index No. 1499/06 (Sept. 22, 2006).

Motion to Quash Subpoenas

Motion to quash subpoenas issued to non-party entities granted where petitioner could not adequately identify any relationship between respondents and the entities that are the subject of the subpoenas. Comm’n on Human Rights, ex rel. Batista, et al. v. AJ Westchester Inc., et. al, OATH Index No. 883/19, mem. dec. (June 12, 2019).

Motion to quash subpoena granted where there was sufficiently reliable evidence to raise doubt that the subpoena was properly served.  New subpoena signed and so long as it is properly served the witness was directed to appear for trial. Matter of Boyers, OATH Index Nos. 1338/12 & 1381/12, mem. dec. (June 29, 2012).

Enforcement of Subpoenas

ENFORCEMENT MECHANISM

Attorney is sanctioned for issuing his own subpoenas, without notice to this tribunal or his adversary, in violation of this section. Matter of Live Centre Tenants Assoc., OATH Index No. 834/05, mem. dec. (Mar. 2, 2006).

A motion to quash an attorney issued subpoena made to this tribunal in the first instance is actually an application to exclude the testimony of a proposed witness. A demand for a witness with no knowledge of relevant facts is denied where respondent wanted to question her only on points of law. Administrative law judge grants petitioner's motion to quash subpoena calling for production of Deputy Commissioner at trial who had no knowledge of the facts concerning the preparation and service of the charges and was being called only to testify about her interpretation of department rules. Fire Dep't v. Durkin, OATH Index No. 309/90, mem. dec. (Jan. 4, 1991).

This section recognizes that subpoenas may be judicially enforced, but, in the interests of judicial economy, requires that any dispute concerning a subpoena be submitted to the administrative law judge before resort to the courts. Dep't of Buildings v. Bellman, OATH Index No. 1100/93 (Apr. 11, 1994), aff'd, BSA Nos. 105-94-A, 106-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 346, 348 (July 6, 1995).

TIMELINESS

Where a party served an attorney-issued subpoena on the day of trial, and moved for enforcement of the subpoena by the administrative law judge, the application was denied as untimely. Dep't of Buildings v. Bellman, OATH Index No. 1100/93 (Apr. 11, 1994), aff'd, BSA Nos. 105-94-A, 106-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 346, 348 (July 6, 1995).

OFFER OF PROOF INSUFFICIENT

Respondent requested issuance of subpoenas ad testificandum and duces tecum for production of contract documents to show a pattern of harassment of respondent. Administrative law judge required offer of proof of testimony of proposed witnesses. Motion for subpoenas denied because respondent provided only representations as to what proposed witnesses might testify to and because contract documents had no apparent relevance to charge. Transit Auth. v. Wagh, OATH Index No. 517/02, mem. dec. (Apr. 29, 2002).

JOURNALISTS' PRIVILEGE

Administrative aw judge denied the Daily News' motion to quash Department's subpoenas and testimony from its reporter and the photographer, related to published, non-confidential journalistic material. Dep't of Transportation v. Sampugnaro, OATH Index Nos. 1564/03, 1565/03 & 1566/03, mem. dec. (June 13, 2003).

Administrative law judge granted the Daily News' motion to quash Department's subpoenas requiring production of non-published journalistic materials in accordance with the Shield Law. Dep't of Transportation v. Sampugnaro, OATH Index Nos. 1564/03, 1565/03 & 1566/03, mem. dec. (June 13, 2003).

PUBLIC INFORMATION PRIVILEGE

In employee disciplinary hearing, employee subpoenaed Department of Investigation's investigatory file. DOI voluntarily provided most of the documents to the employee, but submitted some to the administrative law judge for in camera review, asserting the documents were privileged, under either the law enforcement or the “public interest” privilege. Using the balancing test articulated by the Court of Appeals in World Trade Center Bombing Litigation, 93 N.Y.2d 1 (1999), ALJ concluded that disclosure of most of the documents would harm DOI more than nondisclosure would harm respondent, and therefore the documents should not be disclosed. Among the privileged documents were documents including the names and identification information of confidential informants, and notes recording the thoughts of DOI investigators. Dep't of Sanitation v. McKiernan, OATH Index No. 1770/99 (Aug. 2, 2000).

DOCTOR-PATIENT PRIVILEGE

In a disciplinary hearing where hospital manager was charged with abusing a patient with dementia, hospital asserted the doctor-patient privilege on behalf of the patient and refused to serve patient with a subpoena to testify at trial.  ALJ directed hospital to serve the patient with the subpoena.  Although a witness may invoke the privilege to avoid revealing the substance of confidential communications made to his doctor, a witness may not refuse to testify as to relevant facts about himself. Health & Hospitals Corp. (Coler-Goldwater Specialty Hospital & Nursing Facility) v. Pena, OATH Index No. 1944/12, mem. dec. (Oct. 12, 2012).