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NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED IN THIS OUT-OF-STATE ASBESTOS-RELATED INSURANCE ACTION, THE NONPARTY HAD BEEN EMPLOYED BY THE INSURER AND MAY POSSESS RELEVANT KNOWLEDGE ABOUT HOW THE INSURANCE POLICIES WERE INTERPRETED AND ENFORCED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petition to quash a nonparty subpoena in this out-of-state asbestos-related insurance action should not have been granted:

“CPLR 3101 (a) (4) allows a party to obtain discovery from a nonparty, and provides that [t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof’ ” … . The phrase “material and necessary” in CPLR 3101 “must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’ ” …

“An application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” … , and the burden is on the party seeking to quash a subpoena to make such a showing … . …

“[A] witness’s sworn denial of any relevant knowledge …” … is insufficient, standing alone, to establish that the discovery sought is utterly irrelevant to the action or that the subpoena, if honored, will obviously and inevitably fail to turn up relevant evidence  … . … [The nonparty’s] deposition testimony is … potentially relevant because she has personal knowledge of how [the insurer] interpreted and enforced similar “consent” provisions of other excess policies while she was employed by [the insurer]. Matter of Barber v Borgwarner, Inc., 2019 NY Slip Op 05850, Fourth Dept 7-31-19

 

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