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Hi, Questions related to Discovery Process...

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18 Dec 2012

Hi, Questions related to Discovery Process for Supreme Court NY. #1- Please detail when the Discovery process begins (e.g. immediately after a defendant's Answer...) Would a Motion to 'Compel Discovery' be necessary? #2- Please detail exact steps relating to filing a Subpoena Duces Tecum for release of ducuments, for Pro Se. (For example, fill out form 'X', documents requested to be produced should be mailed to moving party/court, explain a reason for the request on form 'Y', mail it to the County Clerk/Judge/other, serve/mail the signed Subpoena to the party being subpoena'd, mail a copy to the other party, when documents are received, forward a copy of said documents to the court/others... Etc.) Specifically, please detail where one would explain a reason for the request. Additionally, if one can request of the judge for service by mail. Also, the details listed above and other relevant details. Thank you.
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18 Dec 2012

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Lawyer's response
10 Dec 2012
Zachary
Zachary
Attorney
Hi, Thank you for your question. The rules governing the discovery process in New York may be found at: http://codes.lp.findlaw.com/nycode/CVP/31 Discovery may be initiated immediately after the plaintiff files suit. Discovery is not done by requesting it from the court, but on the parties own initiative. There five main discovery methods that you may use: 1. Request for Production - these are questions that go out to the other parties in the lawsuit, requesting that they send copies of documents in their possession, custody, or control for which you ask. For example "Please produce all documents comprising the employment file of John Doe" or "Please produce all written communications between Jane and John Doe during 2010 regarding the negotiations of the contract". 2. Interrogatories - these are written questions that you may ask other parties about information you need to know related to the lawsuit. "Please state the reasons that John Doe was terminated" or "Please identify all employees who were involved in performing the contract", etc. 3. Requests for Admissions - These are requests that identify issues "Admit that you are named correctly in this lawsuit", "Admit that you were driving the vehicle which collided with Plaintiff's vehicle in the incident forming the basis of this litigation. 4. Disclosures - This is a request to another part sent under Section 3102 which will obtain the information required to be disclosed in Section 3101. 5. Depositions - This is a procedure by which you can present oral questions to a witness who is sworn under oath. Each of these five tools of discovery are governed by specific sections of the rules which I have provided you a link above. These discovery tools may only be used to discovery information and evidence from parties to the lawsuit. If you need information or documents from non-parties, or need to question through a deposition a witness who is not a party, you must send out a subpoena. If this is an issue in your case, please let me know and I will investigate whether there are forms you can use in New York. The discovery tools are requests that you come up with yourself and send to the other party's attorney. The other party has generally 20 days from the date served to answer or respond. The procedures are all laid out in the rules provided. Best of Luck, ZDN
10 Dec 2012
Customer reply
10 Dec 2012
Hi, Thank you for replying. However, the main questions were: #1- Whether one would require a Motion to begin Discovery, as I have seen such a motion. And #2- Please *detail* the steps for requesting a subpoena duces tecum for the production of documents. I was very clear on the information requested for the second question. Please review it. That was in fact the main question. Thank you.
10 Dec 2012
Lawyer's response
10 Dec 2012
Zachary
Zachary
Attorney
I wanted to make sure you understood the discovery process, as it seemed from you questions that there might be some basic education on the subject before we proceed to subpoenas. You do not need a motion to start discovery. A motion to compel discovery is what is used when you have sent one of the discovery tool requests and the other side either objects or does not answer or respond. A subpoena duces tecum is what is used when you are requesting the production of documents from someone who is not party to the lawsuit. For a pro se party, you must file a Motion for Issuance of Subpoena with the court. This would be done pursuant to Section 2302(b) at: http://codes.lp.findlaw.com/nycode/CVP/23/2302 Other procedural rules regarding the request and issuance of a subpoena duces tecume, such as fees, etc., can be found at: http://codes.lp.findlaw.com/nycode/CVP/23 You would attach to your written motion the actual subpoena which you need the judge to sign for you. The form for the subpoena is at: http://www.blumberglegalforms.com/forms/72.pdf Here is a guide on how to fill out the subpoena and how to submit it for the courts signature: http://www.nycourts.gov/courts/6jd/forms/SRForms/subpducestecum_instructwithsamp.pdf Here is a form for the motion: http://www.wikihow.com/Sample/Motion-for-Subpoena Here is a form for the proposed order you must submit with the motion: http://www.wikihow.com/Sample/Order-on-Motion-for-Subpoena Good Luck and Let me know if this is not what you were looking for. -ZDN
10 Dec 2012
Customer reply
13 Dec 2012
Hi, Thank you for replying. However, although you stated that a Motion for Isuusance of a Subpoena would be required, from various statements it seems like that would not be necessary. For example, in http://codes.lp.findlaw.com/nycode/CVP/23/2302 it states an option 'Without court order.' and specifies that a County Clerk or Judge etc. may sign a request for Subpoena. Or another example is: http://www.courts.state.ny.us/ithaca/city/webpagesubpeona.html which does not mention a Motion. Additionally, in most other statements regarding the steps for a Subpoena it does not mention anything about a Motion. Might it be sufficient to submit a request, together with a Subpoena, to the County Clerk for approval by a judge? Also, to specify the questions: #1- Would the Subpoena need to be served by a third party, or can it be mailed (for a Subpoena Duces Tecum for a third party, which is a company not an individual)? #2- If it must be properly served, would service to the other party also be required in the same way, or can it be mailed? #3- Would the requested documents be sent to the moving party, or to the court? #4- If it would be sent to the moving party, once the documents are received, would a copy be sent to the court and the other party? Or would they just be used for a trial? Thank you.
13 Dec 2012
Lawyer's response
14 Dec 2012
Zachary
Zachary
Attorney
You, as a pro se litigation, must motion the court for the subpoena. The motion is filed with the clerk, the judge signs the motion, and then the either the clerk or the judge issues the subpoena for you. The rules you are referencing don't mention a motion because they are not talking about your situation as only a pro se litigant has to motion the court for a subpoena. The subpoena has to be served by a third party process server. You don't have to serve the other parties with a subpoena like you do when you are subpoenaing a third party. If subpoenaing a third party, you must only copy the other parties on the subpeona (by fax or mail (or email if you have an agreement to do so)). The requested documents are sent to where you designate in the subpoena. Generally, the way this is done is that you have to hire a bonded copying company to go and pick up the documents, copy them and send the copies to you. Otherwise, you will have to ask for the documents to be produced at the court, where you can inspect and then make copies at your own expense (which means bringing a copy or scan device with you to court).
14 Dec 2012
Customer reply
18 Dec 2012

It appears from many sources that specifically speak relating to Pro Se,
that it may not be necessary to file a motion to request a subpoena. The
method may be different in each state.

.

18 Dec 2012
Lawyer's response
18 Dec 2012
Zachary
Zachary
I've quoted the law to you on this subject. If the clerk is offering you a different option, then go ahead and use it. However, the law says you need a motion.
Customer rating:
Zachary
Zachary
Attorney
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18 Dec 2012
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Customer reply
18 Dec 2012
Hi, I am not just quoting the Clerk, but other sources as well. In some of the links you quoted it clearly gives an option for obtaining a subpoena without a court order. You do not have to reply to this response. It seems that the method differs for each state. In other words, for NY it is not always necessary to submit a motion.
18 Dec 2012

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