Last week, Magistrate Judge Cave ruled that the New York Attorney General’s Office (“OAG”) was protected from having to comply with a document subpoena under Eleventh Amendment sovereign immunity. The subpoena was issued by former Governor Cuomo, in connection with a defending against a civil lawsuit involving allegations overlapping with matters that OAG had investigated.

Judge Cave was faced with a a question that the Second Circuit has not yet resolved: whether “a subpoena to a state agency and subsequent efforts to enforce it are ‘the type of proceeding[] from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.’” She concluded that OAG was immune:

By issuing the OAG Subpoena, and then seeking to enforce it through the OAG MTC, Mr. Cuomo has twice invoked ‘the Judicial power of the United States,’ to require the OAG to produce the Requested Materials, i.e., to ‘compel [the OAG] to act[.]’

Were the Court to order the OAG to comply with the OAG Subpoena and the OAG then failed to abide by that order, the OAG would be in contempt under Rule 45(g) and, on notice, subject to sanctions for non-compliance.

The OAG Subpoena and corresponding OAG MTC therefore represent judicial proceedings in which a State agency is ‘subject[ed] [] to the coercive process of judicial tribunals at the instance of private parties,’ an ‘indignity’ that the Eleventh Amendment exists to prevent. Accordingly, the Court concludes that the OAG Subpoena and corresponding OAG MTC are each a ‘suit’ or ‘judicial proceeding’ that ‘is barred by sovereign immunity in the absence of a waiver.’