On September 12, 2024, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Sojka v. Eisenman, 2024 NY Slip Op. 33212(U), quashing a subpoena because it was intended to determine if evidence existed rather than to obtain evidence, explaining:
It is well settled that the purpose of a subpoena is to compel the production of specific documents that are relevant to the lawsuit.
A subpoena is not proper where one is served to ascertain the possible existence of evidence. Thus, a subpoena may be utilized to compel the production of documents that are evidence themselves not to ascertain the existence of evidence. In American Express Property Casualty Company v. Vinci, 63 AD3d 1055, 881 NYS2d 484 [2d Dept., 2009] the court held a subpoena improper merely served for discovery purposes to ascertain the existence of evidence.
The subpoena in this case states that the documents are sought because the Bank of Texas may have relevant information. Indeed, the subpoena continues and states that information contained in the bank statements may support Eisenman’s assertions that Sojka diverted Madwell funds and would support the counterclaim that Sojka dissipated the assets of Madwell.
Admittedly, there is no specific proof the bank statements will contain any information that supports Eisenman’s allegations. Thus, the subpoena seeks to discover whether any such information even exists. As noted, it is improper to utilize subpoenas to discover the existence of evidence.
Eisenman argues the subpoena is proper since the evidence strongly suggests that the source of these funds was the fees from Madwell clients that should have been deposited into Madwell’s account in the first place, but were wrongfully diverted to “If You Believe in Me, I’ 11 Believe in You, LLC” by Sojka. That entity’s bank records, which are the records sought by the subpoena served on Bank of Texas, are obviously relevant to confirm same. The defendant thus concedes the subpoena has been served to ascertain and obtain discovery and not to request specific and targeted information. Indeed, it may be true that no such information in this regard will even be forthcoming.
Thus, while the bank statements are surely specific documents, the information contained within them is really being used for purposes of discovery, to see what they may contain. That is an improper basis for the issuance of a subpoena. Thus, regardless of whether the subpoena was properly served, a matter the court need not consider at this time, the subpoena is generally improper. Therefore, the motion to quash the subpoena is granted.
(Internal quotations and citations omitted).