Certification of Business Records
(NY)

Summary

This Certification of Business Records (NY) is a standard form that attorneys can use when producing business records on behalf of a nonparty in response to a subpoena duces tecum issued in a New York state court litigation. This template includes practical guidance, drafting notes, alternate clauses, and optional clauses. You can also use this Certification for nonparty business records production where there is no subpoena, as long as the affiant can attest to paragraphs one, two, and four, below. See N.Y. C.P.L.R. 3122-a(d). New York's Civil Practice Law and Rules (C.P.L.R.) requires a nonparty producing business records pursuant to a discovery subpoena to provide an affidavit certifying that the documents produced are in fact business records. See N.Y. C.P.L.R. 3122-a. The C.P.L.R. delineates the required certification language. This language tracks the evidentiary standards for admitting business records at trial. Compare N.Y. C.P.L.R. 3122-a with N.Y. C.P.L.R. 4518. As a result, the certification allows parties to authenticate and admit into evidence a nonparty's business records without having a records custodian lay an evidentiary foundation through live testimony. This streamlined approach obviates the need for superfluous records custodian depositions. If a party plans to offer at trial business records authenticated by a Rule 3122-a certification, the following procedures apply: • At least 30 days before trial, the party intending to use the business records must: ◦ Notify all other parties of its intention –and– ◦ Specify the location where the other parties can inspect the documents • No later than 10 days before trial, any other party may object to the business records' admission. • Unless another party makes a timely objection or makes an objection at trial that could not have been timely discovered through due diligence prior to trial, the court will admit the records as business records. See N.Y. C.P.L.R. 3122-a(c). For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on responding to subpoenas, see Discovery Subpoenas: Responding (NY) and Motion for Protective Order: Making and Opposing the Motion (NY). For information on issuing subpoenas, see Discovery Subpoenas: Drafting, Issuing, and Serving (NY) and Discovery Subpoenas: Enforcing (NY). For related checklists, see Discovery Subpoenas: Responding to a Subpoena Checklist (NY), Discovery Subpoenas: Drafting and Serving a Subpoena Checklist (NY), and Discovery Subpoenas: Enforcing the Subpoena Checklist (NY). For model subpoenas requesting documents, see Subpoena Duces Tecum (Discovery) (NY) and Subpoena Duces Tecum (Trial) (NY).