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PART III Discovery

CHAPTER 8 Overview of the Discovery Process

KEY POINTS • Generally, discovery is conducted freely by the • Information is obtainable by one or more discov- parties without court intervention. ery devices. • Disclosure can be obtained through depositions, • Discovery is limited by certain privileges, such as interrogatories, demands for addresses, discovery attorney-client, priest-penitent, doctor-patient, or inspection of documents and things, physical etc. and mental examinations, requests for admiss- • Orders to compel disclosure, and sanctions ions, and notices to inspect, copy and photograph against noncomplying parties are available by mo- documents. tion to facilitate the discovery process. •New York allows full disclosure of all evidence material and necessary in the prosecution or de- fense of an action,

THE NATURE OF DISCOVERY

DISCLOSURE made of the same party (except in a matrimonial action). In negligence actions, a party may not serve interrogato- This is governed by Article 31 of the CPLR. Information is ries and conduct a deposition of the same party without obtained by the following: depositions upon oral questions court order. (or, outside the state, upon written questions), demands for REQUEST FOR DISCOVERY AND PRODUC- addresses, discovery or inspection of documents or prop- TION OF DOCUMENTS AND THINGS FOR erty, physical and mental examinations of persons, and INSPECTION, TESTING, COPYING, OR PHOTO- requests for admissions. See CPLR 3102(a). In personal GRAPHING. This is authorized by CPLR 3120. After injury actions, a demand for bill of particulars of a party’s commencement of an action, any party may serve any claim is frequently requested to amplify the pleadings and other party with notice to produce and permit the party clarify the issues in dispute. See CPLR 3043. seeking discovery to inspect copy, test, or photograph doc- DEPOSITION. CPLR 3106-3117 controls the de- uments that are in the possession, custody, or control of the position process. After an action is commenced, any party party served, as specified with reasonable particularity in may take the testimony of any person. A written notice of the notice. taking oral questions shall be served, giving each party a PHYSICAL AND MENTAL EXAMINATIONS. twenty- (20) day notice of the examination. When the physical or mental condition of a party is in con- INTERROGATORIES. See CPLR 3130 for use of troversy, any party may serve notice to submit to a physical interrogatories. Note that interrogatories may not be test or blood examination. The notice may require written served where a demand for bill of particulars has also been

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authorizations permitting all parties to make copies of AMOUNT OF TIME medical records. REQUEST FOR ADMISSION. This is governed After the commencement of an action, either party may by CPLR 3123, See Chapter 13. After service of the serve written interrogatories. See CPLR 3130. An answer answer, parties may serve upon other parties a written re- to the interrogatories shall be served within twenty (20) quest for admission of the genuineness of any papers or days after service of the interrogatories. See CPLR 3133. documents, or the corrections of fairness of representation A party cannot serve interrogatories and also demand a of any photographs, or the truth of any matters of fact set Bill of Particulars pursuant to CPLR 3041. forth in the request.

THE EXTENT OF ALLOWABLE DISCOVERY In New York, there shall be full disclosure of all evidence CLERGY PRIVILEGE. See CPLR 4505. material and necessary in the prosecution of defense of an PROTECTION OF EXPERT TESTIMONY. action. See CPLR 3101. Information is obtainable by one Upon request, each party shall identify each person whom or more discovery devices. See CPLR 3102. the party expects to call as an expert, and the subject mat- ter of the expected testimony, the substance of the facts LIMITS ON DISCOVERY and opinions on which each expert is expected to testify, the qualifications of the expert, and the summary of THE ATTORNEY-CLIENT PRIVILEGE. CPLR grounds for the expert’s opinion. See CPLR 3101(d). If an 4503 protects this privilege. An attorney’s work product is expert has not yet been retained, the usual response is to protected pursuant to CPLR 3101(c). state so and acknowledge that the demand is a continuing PHYSICIAN-, CHIROPRACTOR-, DENTIST-, demand. PODIATRIST-, NURSE-PATIENT PRIVILEGE. See CPLR 4504.

COOPERATING WITH DISCOVERY

DISCOVERY CONFERENCES SANCTIONS AGAINST In the event that supervision of disclosure is deemed nec- NONCOMPLYING PARTIES essary, a motion may be made to the court for relief. See In the event that a party refuses to obey an order for dis- CPLR 3104. Local court rules should always be consulted. closure or willfully fails to disclose information that the Also, the Uniform Rules for county and the Supreme court finds ought to have been disclosed, the court may Courts should be consulted regarding the Individual order that issues to which the information sought is rele- Assignment System (IAS), where a single judge is pro- vant be deemed resolved for purposes of the action in ac- vided for the continuous supervision of all civil actions. cordance with the claim of the party seeking the order, or See www.findlaw.com/11stategov/ny/courts.html for court issue an order prohibiting the disobedient party from sup- rules. porting or opposing any claims or defenses, or an order striking the pleadings, dismissing the action, or rendering ORDER TO COMPEL DISCOVERY a default judgment. See CPLR 3126. CPLR 3124 provides for a motion to compel disclosure when a party fails to answer, appear, or submit to discovery. NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 57

CHAPTER 9 Depositions 57

CHAPTER 9 Depositions

KEY POINTS • After an action is commenced any party may take •New York has no provision for telephone the deposition of any party by serving written depositions. notice. • Objections as to the form of questions posed •A subpoena is required to take the deposition of are deemed waived unless objected to at the nonparty witnesses. deposition. • There is a provision for depositions upon written questions when the parties so stipulate or when testimony is to be taken outside the state.

THE DEPOSITION CPLR 3106 through CPLR 3117 govern the deposition party may take the deposition of a party by serving written process in New York. After an action is commenced, any notice.

THE PARALEGAL’S ROLE BEFORE THE ORAL DEPOSITION

NOTICE REQUIREMENT SUBPOENA REQUIREMENT CPLR 3107 requires a notice of at least twenty (20) days SUBPOENA. CPLR 3106(b) requires service of a be given by the party desiring to take the deposition of any subpoena to examine a nonparty witness. party. NOTICE OF INTENT TO TAKE ORAL DEPOSI- PREPARATION FOR DEFENDING THE DEPOSITION TION. The notice may require that books, papers, A deposition within the state shall be taken within the and other things be produced at the examination. See county where a party resides or has an office for the trans- CPLR 3111. 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 the witness for examination and any changes in form or substance shall be entered with a statement of the reasons Procedure for signing depositions is noted in CPLR for making them. The deposition shall be signed by the 3116(a). The deposition transcript shall be submitted to NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 58

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witness before an officer authorized to administer an oath. CPLR 3116(d). In some locations, local practice dictates The party taking the deposition shall bear the expense of that all parties share in the cost equally. the examination unless the court orders otherwise. See

SPECIAL TYPES OF DEPOSITIONS

THE DEPOSITION UPON WRITTEN QUESTIONS VIDEOTAPE DEPOSITIONS This is governed by CPLR 3108 and CPLR 3109. Deposi- Videotape depositions are permitted pursuant to CPLR tions may be taken on written questions when the parties 3113(b). For rules concerning electronic recording of so stipulate, or when the testimony is to be taken outside depositions see: the state. 22 NYCRR 660.25 for New York and Bronx NOTICE OF INTENT TO TAKE DEPOSITION Counties UPON WRITTEN QUESTION. This is referred to 22 NYCRR 685 for the 2nd Department as notice of taking deposition on written questions. See CPLR 3109. 22 NYCRR 830 for the 3rd Department 22 NYCRR 1030 for the 4th Department 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.

CHAPTER 10 Interrogatories

KEY POINTS • After an action is started, any party may serve any • Leave of court is needed to serve both interrogato- other party with written interrogatories. ries and a notice of deposition upon the same • Interrogatories may relate to any matter outlined party in a personal injury action. in CPLR 3101 relating to the scope of disclosure. •A party who objects to answering an interroga- • There is no requirement for sequential numbering tory, may set forth the objection to the interroga- throughout multiple sets of interrogatories served. tory in the response to interrogatories. • There is no limit on the number of interrogatories per set or on the number of sets that may be served upon a party.

INTERROGATORIES CPLR 3130 provides for the use of interrogatories. After defendant within twenty (20) days after being served the an action is started, any party may serve any other party in summons and complaint. See CPLR 3132. A party has the action with written interrogatories. Leave of court twenty (20) days after service of interrogatories to serve a must be obtained if service is made by a plaintiff upon a copy of the answer to interrogatories. See CPLR 3133. NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 59

CHAPTER 10 Interrogatories 59

SCOPE AND NUMBER OF INTERROGATORIES action. See CPLR 3101. There is no requirement for se- quential numbering throughout multiple sets of interroga- Interrogatories may relate to any matter outlined in CPLR tories served. There is no limit on the number of interroga- 3101 relating to the scope of disclosure. See CPLR 3131. tories per set or on the number of sets that may be served Generally, there shall be full disclosure of all evidence upon a party. However, a party may seek a protective order material and necessary in the prosecution or defense of an if this process is abused. See CPLR 3103.

DRAFTING INTERROGATORIES

PRELIMINARY STEPS IN DRAFTING EXPERT WITNESSES INTERROGATORIES Interrogatories are not be used to determine the identity of In New York, in a personal injury action, a party cannot expert witnesses. A demand for disclosure of this informa- serve interrogatories and conduct a deposition of the same tion is permitted pursuant to CPLR 3101(d)(1). party without leave of court. See CPLR 3130(1). SIGNATURE AND CERTIFICATE OF SERVICE DUTY TO SUPPLEMENT ANSWERS Interrogatories shall be answered in writing, under oath by the party upon whom served. See CPLR 3133. In NewYork,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- MOTION TO COMPEL DISCLOSURE sponse was incorrect or incomplete when made, or that the If a party fails to comply with a discovery request, a mo- response, though correct and complete when made, no tion to compel disclosure under CPLR 3124 can be longer is correct and complete, and the circumstances are brought. such that a failure to amend or supplement the response would be materially misleading. See CPLR 3101(h).

DRAFTING ANSWERS TO INTERROGATORIES

DETERMINING TIME LIMITS USING BUSINESS RECORDS INSTEAD Service of the answer must be made within twenty (20) OF A WRITTEN RESPONSE days after service of the interrogatories. Objections to There is no specific provision for this in New York. interrogatories may be set forth in the responses to the However, parties frequently respond to interrogatories by remaining interrogatories. referring to and attaching copies of certain responsive documents or business records. See CPLR 4518. FORM OF THE ANSWERS Each question shall be answered separately and fully and OBJECTING TO INTERROGATORIES each answer shall be preceded by the question to which it When a party objects to an interrogatory, the reasons for responds. See CPLR 3133. the objection shall be stated with reasonable particularity and included in the response to the remaining interrogato- ries. 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 INADMISSIBLE AND IRRELEVANT EVIDENCE obtaining information that the response was incorrect or There shall be full disclosure of all evidence material and incomplete when made, or that the response though cor- necessary in the prosecution or defense of an action. See rect and complete when made, no longer is correct and CPLR 3101(a). complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. See CPLR 3101(h). NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 60

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CHAPTER 11 Physical and Mental Examinations

KEY POINTS • After the start of an action, any party may serve •New York has no provision for an approved list of notice on another party to submit to physical, impartial experts. mental, or blood examinations where the mental •A copy of the report of the examining physician or physical condition or the blood relationship of a shall be given to any party agreeing to exchange party is in question. reports in their possession.

THE PHYSICAL OR MENTAL EXAMINATION TYPES OF CASES USING PHYSICAL tion, any party may serve notice on another party to submit OR MENTAL EXAMINATIONS to a physical, mental, or blood examination. See CPLR 3121. After the start of an action where the mental or physical condition or the blood relationship of a party is in ques-

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 PRELIMINARY CONFERENCE FOR In New York, there is no provision for an approved list of TERMINALLY ILL PARTY impartial experts. At any time, a party who is terminally ill as a result of the culpable conduct of another party to such an action, may DISTRIBUTING THE MEDICAL RECORDS request an expedited preliminary conference. See CPLR 3407. 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 PRECALENDAR CONFERENCES party requesting to exchange therefore a copy of each re- A precalendar conference is required in malpractice port in his or her control of examinations made with re- actions. See CPLR 3406(b). For individual judges’ rules, spect to the mental or physical condition in controversy. see www.nylj.com/rules 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). NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 61

CHAPTER 12 Request for Documents 61

CHAPTER 12 Request for Documents

KEY POINTS • Notices for discovery and inspection can be used •A subpoena duces tecum is needed to require a to obtain copies of documents and to inspect nonparty to produce documents at a deposition. property. •A party may inspect, copy, test, or photograph • CPLR 3101 specifically permits a party to obtain specifically designated documents in another copies of their own statements, contents of an in- party’s possession, custody, or control. surance agreement, and accident reports. •A party may also enter upon designated land or • There shall be full disclosure of films, pho- other property of a party to inspect, measure, sur- tographs, videotapes, or audio tapes, including vey, sample, test photograph, or record the prop- transcripts or memoranda thereof. erty. •A party may be required to produce books or pa- • An attorney need not sign the request for docu- pers at the deposition. ments.

THE REQUEST FOR DOCUMENTS

REQUEST FOR DOCUMENTS ify the time to respond, which cannot be less than twenty (20) days after service of the notice. See CPLR CPLR 3102 and CPLR 3120 authorize the use of notices 3120(a)(2). Disclosure may be made before an action is for discovery and inspection of documents or property. commenced but only by court order. See CPLR 3102(c). 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- DOCUMENTS closure of any films, photographs, video or audiotapes, in- cluding transcripts or memoranda thereof. See CPLR A party may seek to inspect, copy, test, or photograph any 3101(i). Generally, discovery is obtained on notice without specifically designated documents or any things which are leave of court. See CPLR 3102(b). in possession, custody, or control of the party served, as REQUEST FOR DOCUMENTS AT THE DEPO- specified with reasonable particularity in the notice. See SITION OF A PARTY. Books or papers may be re- CPLR 3120. quired to be produced at a deposition of a party. See A party may also be permitted to enter upon desig- CPLR 3111. nated land or other property in the custody or control of SUBPOENAS DUCES TECUM FOR A NON- the party served for the purpose of inspecting, measuring, PARTYTOPRODUCE DOCUMENTSATA DEPOSI- surveying, sampling, testing, photographing, or recording TION. If a person to be examined is not a party to the by motion pictures or otherwise the property or any specif- action, a subpoena duces tecum is required. CPLR 3106(b) ically designated object or operation thereon. CPLR provides for the production of documents by the nonparty. 3120(a)(1)(ii). REQUESTS FOR DOCUMENTS TO PARTIES. ORGANIZATION OF THE DOCUMENTS Generally, disclosure shall be obtained on notice without leave of court. See CPLR 3102(b). The notice shall spec- 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 THE ATTORNEY-CLIENT PRIVILEGE to a request for documents. CPLR 3120(a)2. 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. NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 62

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THE WORK PRODUCT PRIVILEGE PROTECTIVE ORDERS The work product of an attorney shall not be obtainable. The court may, either on its own initiative or on motion of See CPLR 3101(c). a party, make a protective order denying, limiting, condi- tioning, or regulating disclosure devices. CPLR 3103.

REQUESTING THE PRODUCTION OF DOCUMENTS

TITLE OF THE DOCUMENT AND MOTION TO COMPEL INTRODUCTORY PARAGRAPH A motion to compel disclosure may be made pursuant to In New York, the number of the request is generally not CPLR 3124. stated, although it is good practice to do so. INSPECTION OF PROPERTY INSTRUCTIONS Entry upon designated land or other property is outlined in A party shall amend or supplement a response previously CPLR 3120(1)(ii). given to a request for disclosure promptly upon the party’s thereafter obtaining information that the response was in- RESPONDING TO A DEMAND FOR INSPECTION correct or incomplete when made, or that the response though correct and complete when made, no longer is cor- The notice shall specify the time, which shall not be less rect and complete, and the circumstances are such that a than twenty (20) days after service of the notice, the place failure to amend or supplement the response would be ma- and manner of making the inspection, copy, test, or photo- terially misleading. See CPLR 3101(h). 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). 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.

CHAPTER 13 Request for Admissions

KEY POINTS •Any time after service of the answer or twenty the correctness or fairness of representation of any (20) days since service of summons (but no later photographs; or than twenty (20) days before trial), a party may the truth of any matter set forth in a request. serve on another party a written request for an ad- •A party must specifically admit or deny the mat- mission of: ters of which an admission is requested. the genuineness of papers or documents;

THE REQUEST FOR ADMISSIONS

NOTICE TO ADMIT and no later than twenty (20) days before trial, a party may serve on any other party a written request for admission Any time after service of the answer or after twenty (20) of the genuineness of any papers or documents, the days since service of the summons, whichever comes first, NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 63

CHAPTER 13 Request for Admissions 63

correctness or fairness of representation of any pho- sion is requested or set forth in detail the reasons why he tographs, or the truth of any matter set forth in the request. or she cannot truthfully admit or deny those matters. Each of these matters shall be deemed admitted unless de- If the statement cannot be answered without qualifica- nied within twenty (20) days after service. See CPLR tion or explanation or if the material is privileged or a trade 3123(a). secret, instead of a denial or statement, a statement may be made setting forth in detail his or her claim and, if the ADVANTAGES OF THE REQUEST FOR ADMISSIONS claim is that the matter cannot be admitted without a mate- rial qualification or explanation, a statement may be made In response to a request for an admission, a party may admitting the matter with the explanation or qualification. specifically admit or deny the matters of which an admis-

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. NY_Part_III_V4.qxd 9/10/04 4:13 PM Page 64