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Law authorizes limiting civil court subpoenas

ALBANY — New York law has been amended to authorize limiting subpoenas in civil lawsuits for records about people who aren’t directly involved in the litigation.

The amendment to the state’s civil practice law, signed last week by Gov. Andrew Cuomo, applies to both pending lawsuits and new ones. It gives non-parties to a lawsuit the right to object to having their information gathered in the search for evidence.

For example, bank customers can ask a judge to shield their account information in subpoenas of the bank’s records.

The old law authorized judges to consider protective orders for records about the actual parties in suits who have a legal right to object. “Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts,” the law says.

The amendment expands the protection to those “about whom” information is sought. It does not include a specific provision for notifying them of subpoenas.

Legislative sponsors said it would be “an unwarranted anomaly” that they have less right to protect their records and that the new measure “prevents abuse” during the pretrial search for evidence. They cited the example of various clients of an accountant whose records are subpoenaed in a civil suit.

The measure was proposed by New York Chief Judge Jonathan Lippman.

“This bill is in response to a longstanding problem,” said Arlene Hackel, spokeswoman for the state Office of Court Administration. Past court decisions have held that individuals whose names are on such accounts had “no protectable interest” and couldn’t object, she said.

George Carpinello, an attorney who chairs Lippman’s Advisory Committee on Civil Practice, said the issue comes up in commercial litigation. A formal notification provision was discussed but left out to avoid imposing a significant burden on parties seeking to subpoena information.

A judge could decide third parties need to be notified, or the company with affected clients could decide to notify them, Carpinello said. “In many cases the (third) party who has an interest in the papers may not know it occurs,” he said.

The amendment is procedural, providing a means for coming into court and arguing against the subpoena, but doesn’t determine whether or not they win the argument, Carpinello said. The case that prompted the recent discussion involved Manhattan prosecutors’ subpoena from Twitter for account information of a 2011 Occupy Wall Street protester.