E&O Report | Subpoenas: The Shot across the bow – what to know, what to do
E&O Report | February 2026 | Volume 41, Number 2
A. Background
At the end of the October 2024 E&O report, I wrote two paragraphs about something new that I was seeing. An E&O carrier denied coverage to a Member for an E&O suit because months before the Insured was served with a subpoena for documents in the underlying personal injury case and failed to provide notice. The wording of the Notice provisions in the policy defined and treated a subpoena as a “CLAIM” and thus must have been reported to the E&O insurer. As the insured saw no E&O exposure and simply provided a mere handful of documents, it never notified the E&O Insurer.
We recommended (and stand by it today), that you:
1. Review your Notice provisions in your E&O policies to make sure you know exactly what events require notice.
2. Let us know what you find so that we can create a database for analysis and future use.
3. When in doubt, provide notice and let us know as a subpoena is almost always a Shot-Across-the-Bow of an E&O claim.
While you are all aware of the statutory “no prejudice” default position under the 2009 amended to NY Insurance Law §3420, it DOES NOT apply to Claims Made Professional Liability policies. That is still a strict notice standard.
B. Recent Events Prompting this Article
Recently I have had several clients served with subpoenas for both documents and testimony, (one served on the eve of a trial involving its insured), with both subpoenas being improper. One client, wanting to service their insureds, had already provided some documents before I was retained by the E&O carrier. The other was subpoenaed by the Personal Injury Plaintiff’s law firm. In both cases the subpoenas were improper forcing me to seek the court’s intervention to “QUASH”, nullify them.
But it occurred to me that Members should understand that (1) subpoenas are usually….not harmless and portend problems for the Member and (2) even if not the harbinger of an E&O claim, are nonetheless time consuming and costly to comply with, often with the attorneys who served the subpoena not understanding the legal significance of the documents or the limits of what the law allows them to seek.
C. Your Files are —-YOUR FILES
The foundational problem with many subpoenas on insurance brokers[1] is that the attorney serving it, and the Insured, think that files in the possession of the Broker for the INSURED’S insurance belong to the INSURED. They do not! As the BIG I has written about in the past, an Insurance Broker is an Independent actor and its records are its own and not the Customer’s for which the Broker is merely a “custodian”.
The exceptions I have always followed is (1) the policy (which is a 2 party contract between the Insured and the Insurer, NOT THE BROKER[2] and (2) anything the Insured signed.
D. The Factual Limits of What You Have to Do
Even if you have to provide documents, you ONLY have to provide what currently exists in your files that are “RESPONSIVE”. (More on that below.) That means you do not have to create, obtain, find or get anything that you do not already have in your files.
Recently a client was asked by counsel for the Insured to get copies of the Insured’s policies from the carrier for trial. I advised against it as (1) as the other PARTY to the insurance contract, the attorney for the Insured could have asked for them directly from the insurer and (2) since the whole idea of getting documents from the source is for proof that they are AUTHENTIC so that that can be admissible in evidence in a case or trial, since the Broker is not the issuer of the policy, it cannot AUTHENTICATE the carrier’s documents and files.
E. The Law – The Limits of What Can Be Subpoenaed
Subpoenas are legal mechanisms used to get documents from Non-Parties to a lawsuit. But the statutory limits to what is discoverable in a lawsuit from Parties apply as well. The main statute is CPLR[3] §3101 which LIMITS discovery to “matter material and necessary in the prosecution or defense of an action,”. That is a way of saying significantly related to the Causes of Action in the Complaint and the Defenses thereto. The standard is even higher when it comes to Non-Parties as the courts have said that a subpoena under CPLR §3101(a)(4) requires “More than mere relevance and materiality is necessary to warrant disclosure from a nonparty.” Kapon v. Koch, 23 N.Y.3d 32, 38 (2014).
A few years ago, the NY State Legislature amended subsection “(f)” of CPLR §3101 to specifically address Insurance AND to put the burden on the Defendant in a liability scenario to provide its insurance documents, NOT the broker. That subsection created an AFFIRMATIVE DUTY TO DISCLOSE on a Defendant “No later than ninety days after service of an answer” to disclose its Insurance Information.
BUT…..that same statute, at CPLR §3101(f)(i) to (iv), LIMITS the required disclosure that “may under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment…” to the following:
- all primary, excess and umbrella policies, issued by Insurance Companies or via Self-Insurance, and
- the contact information, including the name and e-mail address, of the assigned Insurance Company’s claim adjuster, and from the adjuster
- the total limits available under any policy, after taking into account erosion and any other offsets.
F. My Recent Case Highlights the Possible Problems
Recently my Broker-Client was served with a Subpoena for documents in a multi-vehicle Auto Accident case by counsel for the Plaintiff. In violation of statute and case law[4] the subpoena asked for ““CERTIFIED COPY OF ENTIRE INSURANCE FILE” of the Defendant ABC Corp. which was the Customer of my client.
At the time the subpoena was served ABC Corp had ALREADY provided the required insurance under CPLR §3101(f).
Thus, a blind man could see that the subpoena was not about anything MATERIAL and NECESSARY to any claim or defense in the case. No…it was about WHY there were not higher limits….more insurance, excess coverage! That is an E&O claim in the making.
Perhaps the Plaintiff was going to work out a settlement deal with ABC Corp for an assignment of the Failure to Procure claims against my client and wanted to vet the procurement files to see its viability.
Conclusion
Are many subpoenas harmless? Yes…of course. But given the affirmative, statutory insurance disclosure provisions of CPLR §3101(f) and the limits of what is allowed to be sought, I treat every and any subpoena on a broker-client as the potential for an E&O claim. Thus, handling it from the outset as such, is the best way to prevent it.
As always, when in doubt…. contact the BIG I or me directly. We are here to help.
Submitted by:
Howard S. Kronberg, Esq.
Kaufman Dolowich, LLP
[1] If you are an actual “Agent” of a carrier, then the Agency Agreement may state who the owner of the files/documents are and therefore you should contact the Insurer if served with a subpoena under these circumstances.
[2] Gilbane Bldg. Co./TDX Const. Corp. v. St. Paul Fire et al, 143 A.D.3d 146 (1st Dept., 2016)(“[a]n insurance policy is a contract between the insurer and the insured. (Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 53 A.D.3d 140, 145, 855 N.Y.S.2d 459 [1st Dept. 2008]).” See also NY Ins. Law §101(a)(1).
[3] “Civil Practice Law & Rules” which governs all aspects of Civil Litigation in New York.
[4] Even a valid subpoena must be specific, narrow and targeted stating what need the party has for the documents and how they relate to the claims and defenses in the case. This did none of that.
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