§ 1311-A — Subpoena duces tecum

§ 1311-a. Subpoena duces tecum. 1. At any time before an action\npursuant to this article is commenced, the claiming authority may,\npursuant to the provisions of subdivision two of this section, apply\nwithout notice for the issuance of a subpoena duces tecum.\n 2. An application for a subpoena duces tecum pursuant to this section:\n (a) shall be made in the judicial district in which the claiming\nauthority may commence an action pursuant to this article, and shall be\nmade in writing to a justice of the supreme court, or a judge of the\ncounty court; and\n (b) shall be supported by an affidavit, and such other written\ndocumentation as may be submitted which: (i) sets forth the identity of\nthe claiming authority and certifies that the applicant is authorized to\nmake the application on the claiming authority's behalf; (ii)\ndemonstrates reasonable grounds to believe that the execution of the\nsubpoena would be reasonably likely to lead to information about the\nnature and location of any debt or property against which a forfeiture\njudgment may be enforced; (iii) states whether any other such subpoena\nor provisional remedy has been previously sought or obtained with\nrespect to the subject matter of the subpoena or the matter to which it\nrelates; (iv) contains a factual statement which sets forth the basis\nfor the issuance of the subpoena, including a particular description of\nthe nature of the information sought to be obtained; (v) states whether\nthe issuance of the subpoena is sought without notice to any interested\nparty; and (vi) where the application seeks the issuance of the subpoena\nwithout notice to any interested party, contains a statement setting\nforth the factual basis for the claiming authority's belief that\nproviding notice of the application for the issuance of the subpoena may\nresult in any property being destroyed, removed from the jurisdiction of\nthe court, or otherwise being unavailable for forfeiture or to satisfy a\nmoney judgment that may be entered in the forfeiture action, and may\ninterfere with law enforcement investigations or judicial proceedings.\n 3. An application made pursuant to this section may be granted, in the\ncourt's discretion, upon a determination that the application meets the\nrequirements set forth in subdivision two of this section; provided,\nhowever, that no such subpoena may be issued or directed to an attorney\nwith regard to privileged records or documents or attorney work-product\nrelating to a client. When a subpoena has been issued pursuant to this\nsection, the claiming authority shall have the right to possession of\nthe subpoenaed material. The possession shall be for a period of time,\nand on such reasonable terms and conditions, as the court may direct.\nThe reasonableness of such possession, time, terms and conditions shall\nbe determined with consideration for, among other things, (a) the good\ncause shown by the party issuing the subpoena or in whose behalf the\nsubpoena is issued, (b) the rights and legitimate needs of the person\nsubpoenaed and (c) the feasibility and appropriateness of making copies\nof the subpoenaed material. Where the application seeks a subpoena to\ncompel the production of an original record or document, the court in\nits discretion may order the production of a certified transcript or\ncertified copy thereof.\n 4. Upon a determination pursuant to subdivision three of this section\nthat the subpoena should be granted, the court shall issue the subpoena,\nseal all papers relating thereto, and direct that the recipient shall\nnot, except as otherwise ordered by the court, disclose the fact of\nissuance or the subject of the subpoena to any person or entity;\nprovided, however, that the court may require that notice be given to\nany interested party prior to the issuance of the subpoena, or at any\ntime thereafter, when: (a) an order granting a provisional remedy\npursuant to this article with respect to the subject matter of the\nsubpoena or the matter to which it relates has been served upon the\ndefendant whose books and records are the subject matter of the\nsubpoena, whether such books and records are in the possession of the\ndefendant or a third party; or (b) the court determines that providing\nnotice of the application (i) will not result in any property being\ndestroyed, removed from the jurisdiction of the court, or otherwise\nbeing unavailable for forfeiture or to satisfy a money judgment that may\nbe entered in the forfeiture action and (ii) will not interfere with law\nenforcement investigations or judicial proceedings. For purposes of this\nsection, "interested party" means any person whom the court determines\nmight have an interest in the property subject to the forfeiture action\nbrought pursuant to this article.\n 5. Notwithstanding the provisions of subdivision four of this section,\nwhere a subpoena duces tecum has been issued pursuant to this section\nwithout notice to any interested party, the claiming authority shall\nserve written notice of the fact and date of the issuance of the\nsubpoena duces tecum, and of the fact that information was obtained\nthereby, upon any interested party not later than ninety days after the\ndate of compliance with such subpoena, or upon commencement of a\nforfeiture action, whichever occurs first; provided, however, where the\naction has not been commenced and upon a showing of good cause, service\nof the notice required herein may be postponed by order of the court for\na reasonable period of time. The court, upon the filing of a motion by\nany interested party served with such notice, may, in its discretion,\nmake available to such party or the party's counsel for inspection such\nportions of the information obtained pursuant to the subpoena as the\ncourt directs.\n 6. Nothing contained in this section shall be construed to diminish or\nimpair any right of subpoena or discovery that may otherwise be provided\nfor by law to the claiming authority or to a defendant in a forfeiture\naction.\n