On December 3, 2023, Justice Masley of the New York County Commercial Division issued a decision in CWCapital Invs. LLC v. CWCapital Cobalt Vr Ltd., 2023 NY Slip Op. 34245(U), refusing to enforce a subpoena that was not served in conformance with the Uniform Interstate Deposition and Discovery Act, explaining:
[I]t is undisputed that Cobalt failed to comply with the Uniform Interstate Deposition and Discovery Act (UIDD Act) in serving LNR in Florida. The subpoena is invalid and thus this court, as well as Discovery Referee Gold too, has no jurisdiction to compel LNR’s compliance. The court rejects Cobalt’s argument that as long as LNR had notice, service is sufficient. Cobalt overlooks that it is the UIDD Act that affords the court jurisdiction over foreign citizen witnesses and protects those witnesses from the expense of challenging a subpoena in New York — a foreign state to them. By failing to serve the Florida clerk, Cobalt robbed LNR of a local place to object to the subpoena by moving to quash it. This argument was not waived or abandoned as it was raised by LNR at its first opportunity- Cobalt’s motion to compel compliance. While LNR did not list this objection in its initial letter response, LNR did reserve its rights to quash the subpoena. LNR’s ten-month delay in raising its procedural objection to the subpoena is troubling. However, the subpoena is invalid and the court is without jurisdiction -no amount of delay can change that. Cobalt’s legal support for its waiver argument is inapplicable since it speaks to personal jurisdiction and a statutory deadline to raise it, not the UIDD Act. Since Discovery Referee Gold’s decision is clearly erroneous on this issue, the court is compelled to reverse it.
(Internal citations omitted).