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PART III Discovery
CHAPTER 8
Overview of the Discovery Process
KEY POINTS
• Generally, discovery is conducted freely by the parties without court intervention.
• Disclosure can be obtained through depositions, interrogatories, demands for addresses, discovery or inspection of documents and things, physical and mental examinations, requests for admiss- ions, and notices to inspect, copy and photograph documents.
• New York allows full disclosure of all evidence material and necessary in the prosecution or de- fense of an action,
• Information is obtainable by one or more discov- ery devices.
• Discovery is limited by certain privileges, such as attorney-client, priest-penitent, doctor-patient, etc.
• Orders to compel disclosure, and sanctions against noncomplying parties are available by mo- tion to facilitate the discovery process.
THE NATURE OF DISCOVERY
DISCLOSURE
This is governed by Article 31 of the CPLR. Information is obtained by the following: depositions upon oral questions (or, outside the state, upon written questions), demands for addresses, discovery or inspection of documents or prop- erty, physical and mental examinations of persons, and requests for admissions. See CPLR 3102(a). In personal injury actions, a demand for bill of particulars of a party’s claim is frequently requested to amplify the pleadings and clarify the issues in dispute. See CPLR 3043.
DEPOSITION. CPLR 3106-3117 controls the de- position process. After an action is commenced, any party may take the testimony of any person. A written notice of taking oral questions shall be served, giving each party a twenty- (20) day notice of the examination.
INTERROGATORIES. See CPLR 3130 for use of interrogatories. Note that interrogatories may not be served where a demand for bill of particulars has also been
made of the same party (except in a matrimonial action).
In negligence actions, a party may not serve interrogato- ries and conduct a deposition of the same party without court order.
REQUEST FOR DISCOVERY AND PRODUC- TION OF DOCUMENTS AND THINGS FOR INSPECTION, TESTING, COPYING, OR PHOTO- GRAPHING. This is authorized by CPLR 3120. After commencement of an action, any party may serve any other party with notice to produce and permit the party seeking discovery to inspect copy, test, or photograph doc- uments that are in the possession, custody, or control of the party served, as specified with reasonable particularity in the notice.
PHYSICAL AND MENTAL EXAMINATIONS.
When the physical or mental condition of a party is in con- troversy, any party may serve notice to submit to a physical test or blood examination. The notice may require written
authorizations permitting all parties to make copies of medical records.
REQUEST FOR ADMISSION. This is governed by CPLR 3123, See Chapter 13. After service of the answer, parties may serve upon other parties a written re- quest for admission of the genuineness of any papers or documents, or the corrections of fairness of representation of any photographs, or the truth of any matters of fact set forth in the request.
AMOUNT OF TIME
After the commencement of an action, either party may serve written interrogatories. See CPLR 3130. An answer to the interrogatories shall be served within twenty (20) days after service of the interrogatories. See CPLR 3133.
A party cannot serve interrogatories and also demand a Bill of Particulars pursuant to CPLR 3041.
56 PART III Discovery
THE EXTENT OF ALLOWABLE DISCOVERY
In New York, there shall be full disclosure of all evidence material and necessary in the prosecution of defense of an action. See CPLR 3101. Information is obtainable by one or more discovery devices. See CPLR 3102.
LIMITS ON DISCOVERY
THE ATTORNEY-CLIENT PRIVILEGE. CPLR 4503 protects this privilege. An attorney’s work product is protected pursuant to CPLR 3101(c).
PHYSICIAN-, CHIROPRACTOR-, DENTIST-, PODIATRIST-, NURSE-PATIENT PRIVILEGE.
See CPLR 4504.
CLERGY PRIVILEGE. See CPLR 4505.
PROTECTION OF EXPERT TESTIMONY.
Upon request, each party shall identify each person whom the party expects to call as an expert, and the subject mat- ter of the expected testimony, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of the expert, and the summary of grounds for the expert’s opinion. See CPLR 3101(d). If an expert has not yet been retained, the usual response is to state so and acknowledge that the demand is a continuing demand.
DISCOVERY CONFERENCES
In the event that supervision of disclosure is deemed nec- essary, a motion may be made to the court for relief. See CPLR 3104. Local court rules should always be consulted.
Also, the Uniform Rules for county and the Supreme Courts should be consulted regarding the Individual Assignment System (IAS), where a single judge is pro- vided for the continuous supervision of all civil actions.
See www.findlaw.com/11stategov/ny/courts.html for court rules.
ORDER TO COMPEL DISCOVERY
CPLR 3124 provides for a motion to compel disclosure when a party fails to answer, appear, or submit to discovery.
SANCTIONS AGAINST NONCOMPLYING PARTIES
In the event that a party refuses to obey an order for dis- closure or willfully fails to disclose information that the court finds ought to have been disclosed, the court may order that issues to which the information sought is rele- vant be deemed resolved for purposes of the action in ac- cordance with the claim of the party seeking the order, or issue an order prohibiting the disobedient party from sup- porting or opposing any claims or defenses, or an order striking the pleadings, dismissing the action, or rendering a default judgment. See CPLR 3126.
COOPERATING WITH DISCOVERY
• After an action is commenced any party may take the deposition of any party by serving written notice.
• A subpoena is required to take the deposition of nonparty witnesses.
• There is a provision for depositions upon written questions when the parties so stipulate or when testimony is to be taken outside the state.
• New York has no provision for telephone depositions.
• Objections as to the form of questions posed are deemed waived unless objected to at the deposition.
CHAPTER 9
Depositions
KEY POINTS
THE DEPOSITION
CPLR 3106 through CPLR 3117 govern the deposition process in New York. After an action is commenced, any
party may take the deposition of a party by serving written notice.
THE PARALEGAL’S ROLE BEFORE THE ORAL DEPOSITION
NOTICE REQUIREMENT
CPLR 3107 requires a notice of at least twenty (20) days be given by the party desiring to take the deposition of any party.
NOTICE OF INTENT TO TAKE ORAL DEPOSI- TION. The notice may require that books, papers, and other things be produced at the examination. See CPLR 3111.
SUBPOENA REQUIREMENT
SUBPOENA. CPLR 3106(b) requires service of a subpoena to examine a nonparty witness.
PREPARATION FOR DEFENDING THE DEPOSITION A deposition within the state shall be taken within the county where a party resides or has an office for the trans- action of business or where the action is pending. See CPLR 3110(1).
THE PARALEGAL’S ROLE DURING THE ORAL DEPOSITION
NOTE-TAKING
Objections as to the form of the question asked are deemed waived unless reasonable objection is made thereto at the time of the deposition. See CPLR 3115(b).
THE PARALEGAL’S ROLE AFTER THE ORAL DEPOSITION
TRANSCRIPT ARRANGEMENTS
Procedure for signing depositions is noted in CPLR 3116(a). The deposition transcript shall be submitted to
the witness for examination and any changes in form or substance shall be entered with a statement of the reasons for making them. The deposition shall be signed by the
witness before an officer authorized to administer an oath.
The party taking the deposition shall bear the expense of the examination unless the court orders otherwise. See
CPLR 3116(d). In some locations, local practice dictates that all parties share in the cost equally.
58 PART III Discovery
SPECIAL TYPES OF DEPOSITIONS
THE DEPOSITION UPON WRITTEN QUESTIONS This is governed by CPLR 3108 and CPLR 3109. Deposi- tions may be taken on written questions when the parties so stipulate, or when the testimony is to be taken outside the state.
NOTICE OF INTENT TO TAKE DEPOSITION UPON WRITTEN QUESTION. This is referred to as notice of taking deposition on written questions. See CPLR 3109.
TELEPHONE DEPOSITIONS
There is no provision for this in the CPLR. Parties may agree to a telephonic deposition. There should be a quali- fied person with the depone to administer an oath.
VIDEOTAPE DEPOSITIONS
Videotape depositions are permitted pursuant to CPLR 3113(b). For rules concerning electronic recording of depositions see:
22 NYCRR 660.25 for New York and Bronx Counties
22 NYCRR 685 for the 2nd Department 22 NYCRR 830 for the 3rd Department 22 NYCRR 1030 for the 4th Department
CHAPTER 10
Interrogatories
KEY POINTS
• After an action is started, any party may serve any other party with written interrogatories.
• Interrogatories may relate to any matter outlined in CPLR 3101 relating to the scope of disclosure.
• There is no requirement for sequential numbering throughout multiple sets of interrogatories served.
• There is no limit on the number of interrogatories per set or on the number of sets that may be served upon a party.
• Leave of court is needed to serve both interrogato- ries and a notice of deposition upon the same party in a personal injury action.
• A party who objects to answering an interroga- tory, may set forth the objection to the interroga- tory in the response to interrogatories.
INTERROGATORIES
CPLR 3130 provides for the use of interrogatories. After an action is started, any party may serve any other party in the action with written interrogatories. Leave of court must be obtained if service is made by a plaintiff upon a
defendant within twenty (20) days after being served the summons and complaint. See CPLR 3132. A party has twenty (20) days after service of interrogatories to serve a copy of the answer to interrogatories. See CPLR 3133.
SCOPE AND NUMBER OF INTERROGATORIES Interrogatories may relate to any matter outlined in CPLR 3101 relating to the scope of disclosure. See CPLR 3131.
Generally, there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an
action. See CPLR 3101. There is no requirement for se- quential numbering throughout multiple sets of interroga- tories served. There is no limit on the number of interroga- tories per set or on the number of sets that may be served upon a party. However, a party may seek a protective order if this process is abused. See CPLR 3103.
DRAFTING INTERROGATORIES
PRELIMINARY STEPS IN DRAFTING INTERROGATORIES
In New York, in a personal injury action, a party cannot serve interrogatories and conduct a deposition of the same party without leave of court. See CPLR 3130(1).
DUTY TO SUPPLEMENT ANSWERS
In New York, a party shall amend or supplement a response previously given to a request for disclosure promptly upon the party’s thereafter obtaining information that the re- sponse was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. See CPLR 3101(h).
EXPERT WITNESSES
Interrogatories are not be used to determine the identity of expert witnesses. A demand for disclosure of this informa- tion is permitted pursuant to CPLR 3101(d)(1).
SIGNATURE AND CERTIFICATE OF SERVICE Interrogatories shall be answered in writing, under oath by the party upon whom served. See CPLR 3133.
MOTION TO COMPEL DISCLOSURE
If a party fails to comply with a discovery request, a mo- tion to compel disclosure under CPLR 3124 can be brought.
DRAFTING ANSWERS TO INTERROGATORIES
DETERMINING TIME LIMITS
Service of the answer must be made within twenty (20) days after service of the interrogatories. Objections to interrogatories may be set forth in the responses to the remaining interrogatories.
FORM OF THE ANSWERS
Each question shall be answered separately and fully and each answer shall be preceded by the question to which it responds. See CPLR 3133.
FULFILLING THE DUTY TO SUPPLEMENT A party shall amend or supplement a response previously given for disclosure promptly upon the party’s thereafter obtaining information that the response was incorrect or incomplete when made, or that the response though cor- rect and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. See CPLR 3101(h).
USING BUSINESS RECORDS INSTEAD OF A WRITTEN RESPONSE
There is no specific provision for this in New York.
However, parties frequently respond to interrogatories by referring to and attaching copies of certain responsive documents or business records. See CPLR 4518.
OBJECTING TO INTERROGATORIES
When a party objects to an interrogatory, the reasons for the objection shall be stated with reasonable particularity and included in the response to the remaining interrogato- ries. See CPLR 3133.
INADMISSIBLE AND IRRELEVANT EVIDENCE There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. See CPLR 3101(a).
• After the start of an action, any party may serve notice on another party to submit to physical, mental, or blood examinations where the mental or physical condition or the blood relationship of a party is in question.
• New York has no provision for an approved list of impartial experts.
• A copy of the report of the examining physician shall be given to any party agreeing to exchange reports in their possession.
60 PART III Discovery
CHAPTER 11
Physical and Mental Examinations
KEY POINTS
THE PHYSICAL OR MENTAL EXAMINATION
TYPES OF CASES USING PHYSICAL OR MENTAL EXAMINATIONS
After the start of an action where the mental or physical condition or the blood relationship of a party is in ques-
tion, any party may serve notice on another party to submit to a physical, mental, or blood examination. See CPLR 3121.
REQUIREMENTS FOR GRANTING THE MOTION FOR COMPULSORY EXAMINATION
CONDITION IN CONTROVERSY
CPLR 3121(a) requires that a condition be in controversy in order to request a physical or mental examination.
THE PARALEGAL’S ROLE IN PHYSICAL AND MENTAL EXAMINATIONS
IMPARTIAL EXPERTS
In New York, there is no provision for an approved list of impartial experts.
DISTRIBUTING THE MEDICAL RECORDS A copy of a detailed written report of the examining physi- cian setting out his or her findings and conclusions shall be delivered by the party seeking the examination to any party requesting to exchange therefore a copy of each re- port in his or her control of examinations made with re- spect to the mental or physical condition in controversy.
See CPLR 3121(b).
Also see Uniform Rules for New York State Trial Courts § 202.17 (Supreme Courts and county courts).
MANDATORY FILING IN MALPRACTICE CASES Not later than 60 days after issue is joined, a plaintiff must file a notice of malpractice action with the clerk of the court. See CPLR 3406(a).
PRELIMINARY CONFERENCE FOR TERMINALLY ILL PARTY
At any time, a party who is terminally ill as a result of the culpable conduct of another party to such an action, may request an expedited preliminary conference. See CPLR 3407.
PRECALENDAR CONFERENCES
A precalendar conference is required in malpractice actions. See CPLR 3406(b). For individual judges’ rules, see www.nylj.com/rules
• Notices for discovery and inspection can be used to obtain copies of documents and to inspect property.
• CPLR 3101 specifically permits a party to obtain copies of their own statements, contents of an in- surance agreement, and accident reports.
• There shall be full disclosure of films, pho- tographs, videotapes, or audio tapes, including transcripts or memoranda thereof.
• A party may be required to produce books or pa- pers at the deposition.
• A subpoena duces tecum is needed to require a nonparty to produce documents at a deposition.
• A party may inspect, copy, test, or photograph specifically designated documents in another party’s possession, custody, or control.
• A party may also enter upon designated land or other property of a party to inspect, measure, sur- vey, sample, test photograph, or record the prop- erty.
• An attorney need not sign the request for docu- ments.
CHAPTER 12
Request for Documents
KEY POINTS
THE REQUEST FOR DOCUMENTS
REQUEST FOR DOCUMENTS
CPLR 3102 and CPLR 3120 authorize the use of notices for discovery and inspection of documents or property.
CPLR 3101 specifically permits a party to obtain a copy of his or her own statement, the contents of an insurance agreement, and accident reports. There shall be full dis- closure of any films, photographs, video or audiotapes, in- cluding transcripts or memoranda thereof. See CPLR 3101(i). Generally, discovery is obtained on notice without leave of court. See CPLR 3102(b).
REQUEST FOR DOCUMENTS AT THE DEPO- SITION OF A PARTY. Books or papers may be re- quired to be produced at a deposition of a party. See CPLR 3111.
SUBPOENAS DUCES TECUM FOR A NON- PARTY TO PRODUCE DOCUMENTS AT A DEPOSI- TION. If a person to be examined is not a party to the action, a subpoena duces tecum is required. CPLR 3106(b) provides for the production of documents by the nonparty.
REQUESTS FOR DOCUMENTS TO PARTIES.
Generally, disclosure shall be obtained on notice without leave of court. See CPLR 3102(b). The notice shall spec-
ify the time to respond, which cannot be less than twenty (20) days after service of the notice. See CPLR 3120(a)(2). Disclosure may be made before an action is commenced but only by court order. See CPLR 3102(c).
DOCUMENTS
A party may seek to inspect, copy, test, or photograph any specifically designated documents or any things which are in possession, custody, or control of the party served, as specified with reasonable particularity in the notice. See CPLR 3120.
A party may also be permitted to enter upon desig- nated land or other property in the custody or control of the party served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing, or recording by motion pictures or otherwise the property or any specif- ically designated object or operation thereon. CPLR 3120(a)(1)(ii).
ORGANIZATION OF THE DOCUMENTS This is not covered by the CPLR in New York.
PROTECTION OF DOCUMENTS
A party is given a minimum of twenty (20) days to respond
to a request for documents. CPLR 3120(a)2. THE ATTORNEY-CLIENT PRIVILEGE
Evidence of a confidential communication made between the attorney and the client in the course of professional employment shall not be disclosed. See CPLR 4503.
TITLE OF THE DOCUMENT AND INTRODUCTORY PARAGRAPH
In New York, the number of the request is generally not stated, although it is good practice to do so.
INSTRUCTIONS
A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party’s thereafter obtaining information that the response was in- correct or incomplete when made, or that the response though correct and complete when made, no longer is cor- rect and complete, and the circumstances are such that a failure to amend or supplement the response would be ma- terially misleading. See CPLR 3101(h).
FINAL RESPONSIBILITY IN DRAFTING THE REQUEST There is no requirement that the request for documents be filed. See CPLR 2101(d).
All pleadings must be signed by an attorney.
MOTION TO COMPEL
A motion to compel disclosure may be made pursuant to CPLR 3124.
INSPECTION OF PROPERTY
Entry upon designated land or other property is outlined in CPLR 3120(1)(ii).
RESPONDING TO A DEMAND FOR INSPECTION The notice shall specify the time, which shall not be less than twenty (20) days after service of the notice, the place and manner of making the inspection, copy, test, or photo- graph, or the entry upon the land or other property in pos- session, custody, or control of party served. See CPLR 3120(a)(1)(ii).
62 PART III Discovery
REQUESTING THE PRODUCTION OF DOCUMENTS
CHAPTER 13
Request for Admissions
KEY POINTS
• Any time after service of the answer or twenty (20) days since service of summons (but no later than twenty (20) days before trial), a party may serve on another party a written request for an ad- mission of:
the genuineness of papers or documents;
the correctness or fairness of representation of any photographs; or
the truth of any matter set forth in a request.
• A party must specifically admit or deny the mat- ters of which an admission is requested.
THE REQUEST FOR ADMISSIONS
NOTICE TO ADMIT
Any time after service of the answer or after twenty (20) days since service of the summons, whichever comes first,
and no later than twenty (20) days before trial, a party may serve on any other party a written request for admission of the genuineness of any papers or documents, the THE WORK PRODUCT PRIVILEGE
The work product of an attorney shall not be obtainable.
See CPLR 3101(c).
PROTECTIVE ORDERS
The court may, either on its own initiative or on motion of a party, make a protective order denying, limiting, condi- tioning, or regulating disclosure devices. CPLR 3103.
RESPONDING TO THE REQUEST FOR ADMISSIONS
ALTERNATIVE RESPONSES TO THE REQUEST FOR THE ADMISSION
In New York, a party must respond to admissions that are within the knowledge of the party or can be ascertained by him or her upon reasonable inquiry. See CPLR 3123(a).
FAILURE TO RESPOND
Each of the matters of which an admission is requested shall be deemed admitted unless the responding party serves a response within 20 days. CPLR 3123.
correctness or fairness of representation of any pho- tographs, or the truth of any matter set forth in the request.
Each of these matters shall be deemed admitted unless de- nied within twenty (20) days after service. See CPLR 3123(a).
ADVANTAGES OF THE REQUEST FOR ADMISSIONS In response to a request for an admission, a party may specifically admit or deny the matters of which an admis-
sion is requested or set forth in detail the reasons why he or she cannot truthfully admit or deny those matters.
If the statement cannot be answered without qualifica- tion or explanation or if the material is privileged or a trade secret, instead of a denial or statement, a statement may be made setting forth in detail his or her claim and, if the claim is that the matter cannot be admitted without a mate- rial qualification or explanation, a statement may be made admitting the matter with the explanation or qualification.
