The Best And Most Effective Way To Limit Your Litigation Costs


The best and most effective way to limit litigation costs for your clients is to obtain medical records through the use of subpoenas duces tecum, instead of through the old way of requesting the records by regular mail and an authorization.

The benefit of obtaining medical records with subpoenas duces tecum is two-fold: (1) you will not be forced to pay hundreds of dollars for the copying expense of voluminous medical records; instead, you will only have to pay the statutory fee associated with a subpoena duces tecum; and (2) with proper certification of the records, the records become admissible in evidence as business records and you will not have to subpoena them again when the trial approaches.

CPLR section 3120, which governs the service of subpoenas duces tecum on non-parties, was amended effective September 1, 2003, to streamline the production and admission into evidence of records maintained by non-parties. As amended, CPLR section 3120 no longer requires the service of a motion and a court order to obtain the production of records from a non-party. Rather, a party may now merely serve a non-party with a subpoena duces tecum.

CPLR section 3122-a(d) states that: “Unless the subpoena directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced.” CPLR section 3122-a does not require that the subpoenaed records be produced in the county where the action is venued. With the subpoenas duces tecum, you should include specific instructions that the non-parties “are not required to personally appear” on the date and time set forth in the subpoena duces tecum, and that they can comply with the subpoena duces tecum by mailing the subpoenaed records to your law office.

If the subpoena duces tecum seeks the production of medical records, it must be accompanied by a HIPAA-compliant release authorization and a memo setting forth instructions for compliance with the subpoenas. Simultaneous with the service of the subpoena, you must provide each of the non-parties with the statutory fee and mileage from their place of business to you law office.

By subpoening the medical records and other records from non-parties during discovery, you will save your client hundreds, if not thousands, of dollars in costs, and have the records in admissible form for the trial.