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CIVIL PRACTICE LAWS AND RULES 2301-2308
So, what can you do when your estranged spouse subpoenas documents or individuals in your divorce action and puts you in the hot seat? Well, that’s always annoying. But it is a good idea to accept that divorce is a swamp from which there is often no way to emerge but with mud on your face.
And a part of that swampiness may include a fight over documents and sometimes individuals that one or both parties want to examine to prove their case. And if you don’t comply willingly, you are going to be subpoenaed. It’s really that simple.
A regular subpoena usually requires a person to attend and be examined (a witness, for example) and a subpoena duces tecum requires that one or the other party produce books, documents and other papers. Sometimes, though, your spouse may be acting unreasonably. Or he or she may not be entitled to review the documents for any number of reasons, including that you are not the “owner” of the documents (this comes up in the financial disputes where company records are requested even though the spouse is not the owner, but is rather an employee of the company.)
So what can you do when documents or individuals are unreasonable subpoenaed? Move to quash. What else? Well, you can either comply with the subpoena or you can move to modify the subpoena, or you move to quash the subpoena. How do you move to quash? That’s a very good question. In New York, you are required to first request that the person pulls back or modifies the subpoena before you move to quash. If they refuse, you make a motion to quash (basically to object to the subpoena.) In your motion you would outline your reasons for your objections to the subpoena: for example, it is unreasonable; you did not have sufficient notice to appear or produce the documents; it is too costly to comply with the subpoena; the documents are not in your possession or do not belong to you; the records themselves are confidential (such as medical records) and requires the signature of a judge and/or authorization by the person of record; etc.
If you fail to comply with a judicial subpoena, just remember you can be found in contempt and one of the consequences of that could be incarceration; or you could be ordered to pay a fee of some sort.
Most people in divorce cases don’t end up in jail due to the failure to comply with a subpoena. Usually, the judge just threatens to find you in contempt but I don’t know of a lot of cases where divorcing parties actually wound up in prison due to failure to comply with a subpoena, or for that matter, being in contempt of court for any other reason relating to the divorce.
But yea, if you are subpoenaed, you can always move to quash. Or at a bare minimum, modify the subpoena in some way.
If you are in New York, check out CPLR 2301-2308