VII. What constitutes compliance?

New York's Civil Practice Law and Rules ("CPLR") § 2305 sets forth the basic compliance requirements for testimonial subpoenas, or subpoenas ad testificandum (sub-section (a)) and subpoenas duces tecum (sub-section (b)), as follows:

§ 2305. Attendance required pursuant to subpoena; possession of books, records, documents or papers

(a) When person required to attend. A subpoena may provide that the person subpoenaed shall appear on the date stated and any recessed or adjourned date of the trial, hearing or examination. If he is given reasonable notice of such recess or adjournment, no further process shall be required to compel his attendance on the adjourned date. At the end of each day's attendance, the person subpoenaed may demand his fee for the next day on which he is to attend. If the fee is not then paid, he shall be deemed discharged.

(b) Subpoena duces tecum; attendance by substitute. Any person may comply with a subpoena duces tecum by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.….

Accordingly, when a valid testimonial subpoena is issued, the person directed to attend must do so. In contrast, a subpoena duces tecum (which, by definition seeks documents and things rather than testimony of a person) is, as the Practice Commentaries to the CPLR note, "deemed complied with as long as the person who shows up with the subpoenaed things can identify them and discuss their 'origin, purpose and custody.'" (David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated Civil Practice Law and Rules § 2305 (b)). Although few New York cases have applied this provision of the CPLR, it appears that the person testifying must be competent to satisfy all three criteria. See Standard Fruit & Steamship Co. v. Waterfront Commission of New York Harbor, 43 N.Y.2d 11, 400 N.Y.S.2d 732 (1977) (corporation failed to comply with subpoena duces tecum issued by government agency investigating use of corporate checks when it merely produced corporate officer who had no knowledge of purpose for which checks were issued); Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dep't 1988) (corporation failed to comply with subpoena duces tecum served on its vice president, which ordered vice president to produce for trial book describing characteristics of chemicals, when vice president delivered book but immediately left trial court's jurisdiction).