The following papers having been read on this motion: Order to Show Cause (Plaintiffs) 1 Opposition (Defendants) 2 Notice of Cross-Motion (Non-Party Mindy) 3 Opposition to Cross-Motion (Plaintiffs) 4 Reply to Cross-Motion 5 Plaintiffs move this Court for an order, pursuant to CPLR §2308, to hold non-party Mindy in contempt of Court for failing to comply with a subpoena served upon her by Plaintiffs, dated January 20, 2020. Non-party Mindy has cross-moved to quash said subpoena, pursuant to CPLR §2303. Defendants have submitted an affidavit in opposition to the order to show cause for contempt and in support of the cross-motion to quash the subpoena. After review and consideration, both the order to show cause and the cross-motion are hereby denied in accordance with the following. This Court has already expounded upon the facts underlying the subject case in its decision and order dated April 15, 2020. Subsequent thereto, the parties have participated in no less than three conferences before the Court, discussing issues surrounding outstanding discovery in this matter and a possible resolution in this case. During those conferences, this Court was made aware of not only a pending lawsuit between Plaintiffs’ principal and Defendant Corey’s mother, but also the subject subpoena involved in this case. As the Court has become well versed after review of the moving papers, the relationship between Non-party Mindy and Plaintiffs’ principal has become beyond strained and borderline hostile. Nevertheless, the issues of whether compliance with the subject subpoena is necessary and whether or not the conduct of Non-party Mindy in failing to comply with the subpoena is contemptuous remain before the Court and decided hereafter. A subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence. Wahab v. Agris & Brenner, LLC, 106 AD3d 993, 965 NYS2d 352 (Mem) (2nd Dept. 2013). Rather, its purpose is to compel specific documents that are relevant and material to facts at issue in a pending judicial proceeding. Murray v. Hudson, 43 AD3d 936, 841 NYS2d 645 (2nd Dept. 2007). In determining whether to quash a subpoena duces tecum, a court must determine, among other things, whether the documents sought by the subpoena were relevant to the investigation and if such relevance is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing a reasonable relation to the matter under investigation. In the Matter of N. (Anonymous) v. Novello, 13 AD3d 631, 787 NYS2d 379 (2nd Dept., 2004). An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry. Kapon v. Koch, 23 NY3d 32, 988 NYS2d 559 (2014). Pursuant to CPLR §3101(a)(4), a party may obtain discovery from a non-party of a matter material and necessary in the prosecution or defense of an action in possession of the non-party, as long as the non-party is apprised of the circumstances or reasons such disclosure is sought or required. Hudson City Savings Bank v. 59 Sans Point, LLC, 153 AD3d 611, 57 NYS3d 398 (2nd Dept., 2017). CPLR §2302 permits a subpoena to be issued by an attorney of record for a party to an action, without a court order. Additionally, pursuant to CPLR §2308, if the Court finds that the subpoena was authorized, it shall order compliance and may impose costs not to exceed fifty dollars ($50.00), as well as a penalty not to exceed fifty dollars ($50.00) and damages sustained by reason of the failure to comply. In the instant case, this Court finds that holding Non-party Mindy in civil contempt would be inappropriate given the procedural history in this case. First, while it is unclear as to whether or not Non-party Mindy and Plaintiffs’ principal are currently engaged in active litigation in a separately filed lawsuit, they clearly appear headed in that direction, as both parties acknowledged that they had a long-term relationship and are in the process of dividing up their joint assets with the assistance of counsel. Second, and more importantly, a few days prior to the service of the subject subpoena, Defendants filed a motion for summary judgment dismissing Plaintiffs case in its entirety; as such, it was reasonable for Non-party Mindy to delay the scheduling of her deposition until after that motion was resolved. The order to show cause to hold Non-party Mindy in contempt being filed on July 2, 2020, following the letter to her counsel dated June 23, 2020, left little opportunity to work this situation out, even if Plaintiffs had permission from the Court to file such motion. Thus, the Court finds that the imposition of a fine at this juncture would be improper and Plaintiffs request for same is hereby denied. Turning next to Non-party Mindy’s request to quash the subject subpoena, that application must also be denied. The Court is satisfied that the subpoena sufficiently apprised Non-party Mindy of the circumstances her deposition and compliance with documentary discovery was necessary. See Bianchi v. Galster Management Corp., 131 AD3d 558, 15 NYS3d 189 (2nd Dept., 2015). In addition, the time period with which information is sought from Non-Party Mindy is sufficiently narrow to avoid potential overlap with any litigation that may be pending between herself and Plaintiffs’ principal. Therefore, the request to quash the subpoena is also properly denied and Non-Party Mindy shall appear for a deposition in this matter on or before November 13, 2020. This Court would be remiss if it did not address some of the potential issues that could arise surrounding this deposition, as it cannot be ignored that an order of protection was issued by the Family Court against Plaintiffs’ principal in favor of Non-Party Mindy. Given that dynamic, as well as the ongoing coronavirus pandemic, said deposition shall take place remotely using videoconference technology. Furthermore, while Plaintiffs’ counsel will be conducting the deposition, Non-Party Mindy will have her own counsel present and participating, and Defendants’ counsel certainly may and should be present, both Plaintiffs’ principal and Defendant Corey may not be present during the subject deposition. The scope of said deposition shall be limited to questions surrounding Plaintiffs first, third, fourth, seventh, and ninth causes of action that still remain active in the case, limited in time from January 1, 2019, through the present. Failure of the deposition to be completed under these parameters may result in appropriate sanctions being levied against the offending party as necessary. Plaintiffs shall file and serve a copy of the within order with notice of entry upon Defendants and Non-party Mindy on or before October 12, 2020. Thereafter, the parties shall participate as scheduled in a telephone conference before this Court on October 15, 2020. Counsel for Non-party Mindy should be available if necessary, to discuss scheduling of her deposition. This hereby constitutes the decision and order of this Court. Dated: September 29, 2020
