David Paul Horowitz and Lukas M. Horowitz

Welcome to “Burden of Proof,” a new column in the New York Law Journal focused on evidentiary and discovery issues litigators confront every day. Three goals inform the content. First, to provide you with timely, relevant updates in the law. Second, to alert you to, and perhaps help you avoid, some of the myriad pitfalls hidden just around the next corner in your case. Third, maybe, just maybe, to make your life as a litigator a little bit easier and, hopefully, more rewarding.

Readers may recognize “Burden of Proof” from its 14-year run in the NYSBA Journal, and to returning readers, a very warm welcome back. There is but one change, one you may have already noticed: the addition as co-author of Lukas M. Horowitz, fresh off his own two-year run writing the column he originated in the NYSBA Journal, “Becoming A Lawyer.” We are grateful for the expanded readership the New York Law Journal platform provides, and to new readers, we hope you will find this column a useful addition to your litigator's toolbox.

Fortuitously, today's topic was dictated by the enactment on Aug. 24, 2018, of two changes to the CPLR, the first a new section in article 45 designed to facilitate the admission into evidence of records produced during disclosure by an opposing party, and the second an amendment adding a new subsection (d) to CPLR 2305 designed to permit subpoenaed records to be delivered to an attorney's office and to make certain all parties receive copies of subpoenaed records from the attorney receiving the subpoenaed records.

The Problem

It is hard to imagine a more mundane trial task than authenticating and admitting into evidence documents created by an opposing party and received from that party during discovery. Yet this ministerial act, seemingly simple on its face, can be the bane of even experienced trial attorneys.

A number of mechanisms exist to establish admissibility. A document may be stipulated to be admissible pursuant to CPLR 2104; a business record foundation may be established pursuant to CPLR 4518 by a witness at deposition or at trial, or pursuant to CPLR 3122-a for documents produced pursuant to subpoena during disclosure (remember that 3122-a(c) requires 30 days notice of intent to use the documents at a hearing or trial); documents may be “admitted” to be true via a notice to admit served pursuant to CPLR 3123; and circumstantially, as discussed below. Each of these mechanisms has one or more limitations, so a new method for admissibility is most welcome.

The Solution

Effective Jan. 1, 2019, CPLR 4540-a will be available to simplify authentication, and admissibility:

Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party. Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.

CPLR 4540-a is the result of a proposal by the Chief Administrative Judge upon the recommendation of the Advisory Committee on Civil Practice. The Assembly memorandum in support of the proposed legislation explained, “CPLR 4540-a is designed to eliminate the needless authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.'”

The supporting memorandum explained that the new rule “would codify and expand upon caselaw that has been overlooked by many New York courts, practitioners, and commentators”:

The idea that a party's production of his or her own papers serves to authenticate them is a specific application of the general rule that the authenticity of a document may be established by circumstantial evidence. (Citation omitted). The New York Court of Appeals recognized the probative value of a party's production of its own documents in Driscoll v. Troy Housing Auth. (citation omitted), where the issue was the authenticity of an unsigned, undated “roster card” describing the status of a civil service employee. The card was produced by the civil service commission from its files, where it had been kept for eight years. The Court held that “its authenticity must be presumed, or we have presumed wrongdoing rather than honesty on the part of the public official.” (Citation omitted). The Court's ruling was bolstered by the presumption of regularity that attaches to the acts and records of public agencies, but the authentication-by-production doctrine was also recognized with respect to private documents in Ruegg v. Fairfield Securities Corp. (Citation omitted). There, the Court observed that the authenticity of a copy of a letter “produced from defendant's own files” was “unquestioned.”

So, like the power of Dorothy's red slippers to return her to Kansas, the inherent self-authentication of records created and produced by a party was always there, we just didn't realize it.

Critically, CPLR 4540-a acknowledges the possibility that records proffered for admission may not be authentic, or may suffer from some other infirmity barring admissibility, thus the presumption of admissibility is a rebuttable one:

CPLR 4540-a creates a rebuttable presumption that accomplishes two goals. First, when the item at issue is one that has already been produced by a party in the course of pretrial disclosure, and such item purportedly was authored or created by that party, the opposing party is thereby relieved of the need, ab initio, to come forward with evidence of its authenticity. Second, the rebuttable nature of the presumption protects the ability of the producing party, if he or she has actual evidence of forgery, fraud, or some other defect in authenticity, to introduce such evidence and prove, by a preponderance, that the item is not authentic. A mere naked “objection” based on lack of authenticity, however, will not suffice. Shifting the burden of proof to the producing party makes sense because that party is most likely to have better access to the relevant evidence on the issue of forgery or fraud. Furthermore, the presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule.

Finally, nothing in the new statute prevents a party from establishing admissibility by any other available means, some of which may establish the admissibility conclusively, thus eliminating any concern about CPLR 4540-a's rebuttable presumption.

We note that adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 (“Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the rules of evidence at common law.”).

What to Do Until Jan. 1, 2019?

Because the statute does not take effect until the first of the year, reliance upon tried and true methods will have to suffice, and lawyers should not be afraid to exploit those methods. In Smith v. Brown, 2018 NY Slip Op 28299 (Justice John R. Higgitt, Supreme Court, Bronx County Sept. 27, 2018), a defendant served a notice to admit to establish pedigree facts for a plaintiff's social media postings and establish the admissibility of those facts and certain “selfies” purportedly posted by plaintiff. The trial court held:

Plaintiff either owns and maintains an Instagram account with a specified handle or she does not, and either that handle was changed from a public to private account setting after a specific date or it was not. Moreover, with respect to the requested admissions relating to the photographs—that were obtained from plaintiff's Instagram account—plaintiff can state whether she is the one depicted in the photographs—most of which appear to be “selfies”—and whether the photographs were taken after the accident. The notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, that the matters on which defendant Pasquale seeks admissions could be explored at a deposition does not take them out of the ambit of the notice to admit. At bottom, the notice sought admissions of the truth of clear-cut matters of fact that defendant Pasquale reasonably believed there could be no substantial dispute at trial and were within the knowledge of plaintiff (see CPLR 3123[a]).

We should also heed the suggestion in the supporting memorandum for CPLR 4540-a and consider circumstantial evidence supporting admissibility, as the Court of Appeals reiterated two months ago in People v. Pendell, 2018 NY Slip Op 05899 (2018):

We are unpersuaded by defendant's contention that the handwritten notes were not properly authenticated. The circumstantial evidence, including the inmate's testimony and the content of the notes themselves, satisfied the authentication requirement (citations omitted).

The Other Problem

Except for those required to be “so ordered,” subpoenas in state court actions are issued by attorneys, and records produced pursuant to a lawyer's subpoena ducus tecum are delivered to the clerk of the court in which the action is pending.

Attorneys have sought for some time to have the option of having records produced pursuant to a subpoena ducus tecum delivered to the attorney's office rather than the clerk of the court. The Advisory Committee on Civil Practice proposed this option, explaining that “[t]he Committee believes that counsel should have the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. This is especially true where the materials are in digital format and can be delivered on a disk or through other electronic means.”

The Solution

CPLR 2305 was amended to add new subsection (d), and took effect upon enactment on Aug. 24, 2018:

(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records. Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.

This new provision can be particularly useful in counties where there is a delay in subpoenaed records being delivered to the courthouse and the records being properly logged in and available to the attorneys and court. Be certain to comply with the requirement to deliver copies of the records to counsel and self-represented parties. While the statute does not specify a timeframe, expeditiously furnishing copies of the subpoenaed records will negate any claims of sharp practice, particularly when subpoenaing records close to trial.

Conclusion

These two new CPLR provisions will ameliorate some of the hurdles and delays we encounter in litigation, and serve as a nice reminder that the CPLR, in its mid-50s, can improve with age.

David Paul Horowitz is a member of McNamara & Horowitz in New York City as well as a private arbitrator, mediator and discovery referee affiliated with JAMS. He can be reached at [email protected]. Lukas M. Horowitz is a member of the Albany Law School Class of 2019. David is a member of the Advisory Committee on Civil Practice, mentioned herein.