CPLR Deposition Notice Requirements in New York: Service, Location, Subpoenas

To notice a deposition in New York, serve every party with a written notice at least 20 days before the examination that states the time, the place, and the name and address of each person to be examined, as required by CPLR 3107. Those are the core CPLR deposition notice requirements, and getting any of the three details wrong, or missing the service window, invites a motion to quash and a wasted deposition date.¹

What the Notice Must Say

CPLR 3107 keeps the content list short. The notice must be in writing. It must state the time and place of the deposition. It must give the name and address of each person to be examined. If a name is unknown, a general description sufficient to identify the person or the class they belong to will do.¹ You do not need to list the topics the witness will be asked about. That is a federal practice under Rule 30(b)(6); it is not what New York requires.

When the witness is an officer, director, member, or employee of a party organization, CPLR 3106(d) adds a wrinkle: the notice must include that individual’s identity, description, or title. The organization is required to produce the person you named unless, at least ten days before the deposition, it serves you with notice that it will substitute someone else and identifies who that substitute will be.² You pick the person. The entity’s only unilateral option is to propose a replacement.

How and When to Serve the Notice

A deposition notice is served the same way as other litigation papers under CPLR 2103: personal delivery, mail, or overnight delivery. If the parties have consented to electronic filing, electronic service is also available. Service by mail from within New York adds five days to any deadline measured from service; mail from elsewhere in the United States adds six.³ Those add-ons matter when you are working against the 20-day notice period in CPLR 3107, which runs from service.¹ Mailing a notice from within the state effectively means sending it at least 25 days out.

A notice alone is enough for parties and their officers, directors, members, and employees. It is not enough for anyone else. Non-party witnesses must be served with a subpoena under CPLR 3106(b), personally delivered in compliance with CPLR 2303, and, unless the court orders otherwise, served at least 20 days before the examination.² A subpoena to a non-party also triggers witness-fee obligations, discussed below.

Two other kinds of witnesses sit outside the ordinary notice-and-subpoena track. CPLR 3108 allows depositions on written questions or by commission or letters rogatory when the witness is outside New York, which involves coordination with out-of-state courts.⁴ CPLR 3106(c) requires a court order before a deposition of an incarcerated person can go forward.²

Who Can Notice a Deposition First

Plaintiffs face a timing restriction that defendants do not. Under CPLR 3106(a), a plaintiff who wants to depose a party needs court permission if the notice is served before the opposing party’s time to answer has expired. No equivalent restriction applies to defendants.² In practice, a defendant can notice depositions as soon as the action is commenced, while a plaintiff generally waits for the answer period to run.

If you receive someone else’s notice, CPLR 3107 lets you serve a cross-notice to examine any other party, or an agent or employee of a party, at the same time and place. A cross-notice requires only 10 days.¹ It piggybacks on the logistics the noticing party has already arranged.

Where the Deposition Must Be Held

CPLR 3110 controls location when the deposition takes place within New York. A party, or an officer, director, member, or employee of a party, is deposed in the county where they reside, where they have an office in which they regularly do business, or where the action is pending. For purposes of this rule, the five boroughs of New York City count as a single county.⁵

Public corporations and their officers or employees follow a slightly different default: the deposition takes place in the county where the action is pending, at the office of one of the public corporation’s attorneys, unless the parties agree otherwise.⁵ A notice that calls a witness to a place CPLR 3110 does not authorize is defective on its face.

Attaching a Document Demand to the Notice

Under CPLR 3111, a deposition notice or subpoena can require the witness to bring books, papers, and other items in their possession, custody, or control to be marked as exhibits and used during the examination. When the witness is a non-party, the party requesting discovery must cover reasonable production expenses, which includes costs like photocopying and compiling records.⁶

Expert witnesses are a separate matter. CPLR 3101(d)(1)(i) requires each party to disclose its expected trial experts and provide a summary of opinions, qualifications, and grounds on request, but deposing an opposing expert ordinarily requires a court order and a showing of special circumstances. You cannot simply notice an expert deposition the way you would a fact witness. Medical, dental, and podiatric malpractice cases have their own exchange procedure under the same rule, in which either party can offer to produce its expert and acceptance by all parties then binds everyone to produce their experts on notice, with preclusion at trial for anyone who then refuses.⁷

Video and Remote Depositions

If the deposition will be recorded by audiovisual means, 22 NYCRR 206.11 requires the notice or subpoena to say so and to identify the camera operator by name and address, along with the operator’s employer, if any. Leaving those details out is a straightforward objection for the other side.⁸

Remote depositions by telephone or videoconference are different. CPLR 3113(d) requires a stipulation of all parties. The stipulation has to address how to ensure an accurate record, how exhibits will be used, who must be physically present with the witness, and any other appropriate provisions. Unless the parties agree otherwise, the officer administering the oath must be physically present where the witness is, and the party requesting the remote format pays the added costs.⁹ Because a stipulation is required, you cannot force a reluctant opponent into a remote format by notice alone.

Witness Fees That Travel With a Subpoena

When you subpoena a non-party, CPLR 8001 fees are owed regardless of whether the witness ends up testifying. The statutory rates are $15 per day for attendance and $0.23 per mile from the place of service to the deposition location and back, with no mileage fee for travel entirely within a city. A non-party subpoenaed for a deposition, as distinct from trial, receives an additional $3 per day on top of the attendance fee. If the subpoena requires the witness to prepare a transcript of records, the witness is entitled to $0.10 per folio upon demand.¹⁰ These amounts are set by statute. They have not been updated in years, but they remain the legal obligation and should be tendered with the subpoena.

If the Notice or Subpoena Is Ignored

When a party stonewalls a properly noticed deposition, the examining party can move to compel under CPLR 3124.¹¹ If the party then defies a court order, CPLR 3126 authorizes sanctions that escalate with the conduct: treating disputed issues as resolved against the disobedient party, precluding them from supporting or opposing designated claims or from introducing certain evidence or witnesses, striking pleadings in whole or in part, staying the case until compliance, dismissing the action, or entering a default judgment. Whether the failure was willful or merely negligent influences which level the court chooses.¹²

Non-party witnesses who ignore a subpoena are handled under CPLR 2308. If the subpoena was issued by a judge, clerk, or court officer, the witness can be held in contempt, a warrant can issue directing the sheriff to bring them in, and they are liable for a penalty of up to $150 plus actual damages caused by the noncompliance; if the witness is a party, their pleadings can be struck. For a non-judicial subpoena, such as one issued by an attorney, the issuer moves in Supreme Court to compel compliance; if the court finds the subpoena authorized, it orders compliance and may impose costs up to $50, and the witness also faces a penalty of up to $50 plus damages. Under either track, a witness who appears but refuses to answer or produce documents can be committed until they comply.¹³

1
FindLaw. New York Civil Practice Law and Rules Rule 3107 – Notice of Taking Oral Questions
2
New York State Senate. New York Civil Practice Law and Rules Rule 3106 – Priority of Depositions, Witnesses, Prisoners, Designation of Deponent
3
New York State Senate. New York Civil Practice Law and Rules Rule 2103 – Service of Papers
4
New York State Senate. New York Civil Practice Law and Rules Rule 3108 – Written Questions, When Permitted
5
FindLaw. New York Civil Practice Law and Rules Rule 3110 – Where the Deposition Is to Be Taken Within the State
6
New York State Senate. New York Civil Practice Law and Rules Rule 3111 – Production of Things at the Examination
7
New York State Senate. New York Civil Practice Law and Rules 3101 – Scope of Disclosure
8
Legal Information Institute. New York Comp. Codes R. and Regs. Tit. 22 206.11 – Recording of Civil Depositions
9
New York State Senate. New York Civil Practice Law and Rules Rule 3113 – Conduct of the Examination
10
New York State Senate. New York Civil Practice Law and Rules 8001 – Witnesses
11
New York State Senate. New York Civil Practice Law and Rules Rule 3124 – Failure to Disclose, Motion to Compel Disclosure
12
New York State Senate. New York Civil Practice Law and Rules 3126 – Penalties for Refusal to Comply With Order or to Disclose
13
New York State Senate. New York Civil Practice Law and Rules 2308 – Disobedience of Subpoena