Trial Subpoenas to Settling Parties Allowed to Issue For Liability Apportionment Supreme Court, State of New York, County of Erie, Eighth Judicial District, September 5, 2018
NEW YORK — In a currently pending asbestos matter, defendant Jenkins Bros. issued trial subpoenas to three settling defendants – Crane Co., Flowserve, Inc., and Warren Pumps. These three defendants filed motions to quash the subpoenas, which the court denied. The court ruled that the trial subpoenas were served properly on counsel in a timely manner, as no orders or stipulations of discontinuance had been filed by the three parties, and that the information sought in the subpoenas was relevant to establish apportionment of liability pursuant to CPLR 1601. In so ruling, the court rejected arguments that “enforcement of the trial subpoenas would have a ‘chilling effect’ on settlement.” She further ruled that Jenkins could use the deposition testimony of its adverse parties, as CPLR 3117(2) provides that such testimony may be used for any purpose by any party who was adversely interested when the testimony was given. However, the motion to quash a trial subpoena issued to IMO Industries, an out of state non-party, was granted, as a New York subpoena could not reach beyond New York borders.