Article 31. Disclosure

SHORT TITLE, APPLICABILITY AND DEFINITIONS

The Sections of Article 31.:

CPLR Article 31-Discovery

NY CPLR § 3101. SCOPE OF DISCLOSURE

(a) Generally.  There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:

  1. a party, or the officer, director, member, agent or employee of a party;
  2. a person who possessed a cause of action or defense asserted in the action;
  3. a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness;  and
  4. any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.

(b) Privileged matter.  Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.

(c) Attorney’s work product.  The work product of an attorney shall not be obtainable.

(d) Trial preparation.  

  1. Experts.  
  • (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.  However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph.  In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.  In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.
  • (ii) In an action for medical, dental or podiatric malpractice, any party may, by written offer made to and served upon all other parties and filed with the court, offer to disclose the name of, and to make available for examination upon oral deposition, any person the party making the offer expects to call as an expert witness at trial.  Within twenty days of service of the offer, a party shall accept or reject the offer by serving a written reply upon all parties and filing a copy thereof with the court.  Failure to serve a reply within twenty days of service of the offer shall be deemed a rejection of the offer.  If all parties accept the offer, each party shall be required to produce his or her expert witness for examination upon oral deposition upon receipt of a notice to take oral deposition in accordance with rule thirty-one hundred seven of this chapter.  If any party, having made or accepted the offer, fails to make that party’s expert available for oral deposition, that party shall be precluded from offering expert testimony at the trial of the action.
  • (iii) Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate.  However, a party, without court order, may take the testimony of a person authorized to practice medicine, dentistry or podiatry who is the party’s treating or retained expert, as described in paragraph three of subdivision (a) of this section, in which event any other party shall be entitled to the full disclosure authorized by this article with respect to that expert without court order.
  • (iv) Repealed eff. Feb. 17, 2014 by L.2013, c. 23, § 4 .

2. Materials.  Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

(e) Party’s statement.  A party may obtain a copy of his own statement.

(f) Contents of insurance agreement.  A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.  Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.  For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement.

(g) Accident reports.  Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution.

(h) Amendment or supplementation of responses.  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 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.  Where a party obtains such information an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of noncompliance with this subdivision.  In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.  Further amendment or supplementation may be obtained by court order.

(i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section.  There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use.  The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law .

NY CPLR § 3102. METHOD OF OBTAINING DISCLOSURE

(a) Disclosure devices.  Information is obtainable by one or more of the following disclosure devices:  depositions upon oral questions or without the state upon written questions, interrogatories, demands for addresses, discovery and inspection of documents or property, physical and mental examinations of persons, and requests for admission.

(b) Stipulation or notice normal method.  Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court.

(c) Before action commenced.  Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.  The court may appoint a referee to take testimony.

(d) After trial commenced.  Except as provided in section 5223 , during and after trial, disclosure may be obtained only by order of the trial court on notice.

(e) Action pending in another jurisdiction.  Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he or she may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state.  The supreme court or a county court shall make any appropriate order in aid of taking such a deposition.

(f) Action to which state is party.  In an action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person.

NY CPLR § 3103. PROTECTIVE ORDERS

(a) Prevention of abuse.  The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device.  Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

(b) Suspension of disclosure pending application for protective order.  Service of a notice of motion for a protective order shall suspend disclosure of the particular matter in dispute.

(c) Suppression of information improperly obtained.  If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.

NY CPLR § 3104. SUPERVISION OF DISCLOSURE

(a) Motion for, and extent of, supervision of disclosure.  Upon the motion of any party or witness on notice to all parties or on its own initiative without notice, the court in which an action is pending may by one of its judges or a referee supervise all or part of any disclosure procedure.

(b) Selection of referee.  A judicial hearing officer may be designated as a referee under this section, or the court may permit all of the parties in an action to stipulate that a named attorney may act as referee.  In such latter event, the stipulation shall provide for payment of his fees which shall, unless otherwise agreed, be taxed as disbursements.

(c) Powers of referee;  motions referred to person supervising disclosure.  A referee under this section shall have all the powers of the court under this article except the power to relieve himself of his duties, to appoint a successor, or to adjudge any person guilty of contempt.  All motions or applications made under this article shall be returnable before the judge or referee, designated under this section and after disposition, if requested by any party, his order shall be filed in the office of the clerk.

(d) Review of order of referee.  Any party or witness may apply for review of an order made under this section by a referee.  The application shall be by motion made in the court in which the action is pending within five days after the order is made.  Service of a notice of motion for review shall suspend disclosure of the particular matter in dispute.  If the question raised by the motion may affect the rights of a witness, notice shall be served on him personally or by mail at his last known address.  It shall set forth succinctly the order complained of, the reason it is objectionable and the relief demanded.

(e) Payment of expenses of referee.  Except where a judicial hearing officer has been designated a referee hereunder, the court may make an appropriate order for the payment of the reasonable expenses of the referee.

NY CPLR RULE RULE 3105. NOTICE TO PARTY IN DEFAULT

 When a party is in default for failure to appear, he shall not be entitled to notice or service of any copy required under this article.

NY CPLR RULE RULE 3106. PRIORITY OF DEPOSITIONS; WITNESSES; PRISONERS; DESIGNATION OF DEPONENT

(a) Normal priority.  After an action is commenced, any party may take the testimony of any person by deposition upon oral or written questions.  Leave of the court, granted on motion, shall be obtained if notice of the taking of the deposition of a party is served by the plaintiff before that party’s time for serving a responsive pleading has expired.

(b) Witnesses.  Where the person to be examined is not a party or a person who at the time of taking the deposition is an officer, director, member or employee of a party, he shall be served with a subpoena.  Unless the court orders otherwise, on motion with or without notice, such subpoena shall be served at least twenty days before the examination.  Where a motion for a protective order against such an examination is made, the witness shall be notified by the moving party that the examination is stayed.

(c) Prisoners.  The deposition of a person confined under legal process may be taken only by leave of the court.

(d) Designation of deponent.  A party desiring to take the deposition of a particular officer, director, member or employee of a person shall include in the notice or subpoena served upon such person the identity, description or title of such individual.  Such person shall produce the individual so designated unless they shall have, no later than ten days prior to the scheduled deposition, notified the requesting party that another individual would instead be produced and the identity, description or title of such individual is specified.  If timely notification has been so given, such other individual shall instead be produced.

NY CPLR RULE RULE 3107. NOTICE OF TAKING ORAL QUESTIONS

A party desiring to take the deposition of any person upon oral examination shall give to each party twenty days’ notice, unless the court orders otherwise.  The notice shall be in writing, stating the time and place for taking the deposition, the name and address of each person to be examined, if known, and, if any name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.  The notice need not enumerate the matters upon which the person is to be examined.  A party to be examined pursuant to notice served by another party may serve notice of at least ten days for the examination of any other party, his agent or employee, such examination to be noticed for and to follow at the same time and place.

NY CPLR RULE RULE 3108. WRITTEN QUESTIONS; WHEN PERMITTED

A deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state.  A commission or letters interrogatory may be issued where necessary or convenient for the taking of a deposition outside of the state.

NY CPLR RULE RULE 3109. NOTICE OF TAKING DEPOSITION ON WRITTEN QUESTIONS

(a) Notice of taking;  service of questions and cross-questions.  A party desiring to take the deposition of any person upon written questions shall serve such questions upon each party together with a notice stating the name and address of the person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title and address of the officer before whom the deposition is to be taken.  Within fifteen days thereafter a party so served may serve written cross-questions upon each party.  Within seven days thereafter the original party may serve written redirect questions upon each party.  Within five days after being served with written redirect questions, a party may serve written recross-questions upon each party.

(b) Officer asking written questions.  A copy of the notice and copies of all written questions served shall be delivered by the party taking the deposition to the officer designated in the notice.  The officer shall proceed promptly to take the testimony of the witness in response to the written questions and to prepare the deposition.

NY CPLR RULE RULE 3110. WHERE A DEPOSITION IS TO BE TAKEN WITHIN THE STATE

A deposition within the state on notice shall be taken:

1. when the person to be examined is a party or an officer, director, member or employee of a party, within the county in which he resides or has an office for the regular transaction of business in person or where the action is pending;  or

2. when any other person to be examined is a resident, within the county in which he resides, is regularly employed or has an office for the regular transaction of business in person, or if he is not a resident, within the county in which he is served, is regularly employed or has an office for the regular transaction of business in person;  or

3. when the party to be examined is a public corporation or any officer, agent or employee thereof, within the county in which the action is pending;  the place of such examination shall be the office of any of the attorneys for such a public corporation or any officer, agent or authorized employee thereof unless the parties stipulate otherwise.

For the purpose of this rule New York city shall be considered one county.

NY CPLR RULE RULE 3111. PRODUCTION OF THINGS AT THE EXAMINATION

The notice or subpoena may require the production of books, papers and other things in the possession, custody or control of the person to be examined to be marked as exhibits, and used on the examination.  The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.

NY CPLR RULE RULE 3112. ERRORS IN NOTICE FOR TAKING DEPOSITIONS

All errors and irregularities in the notice for taking a deposition are waived unless at least three days before the time for taking the deposition written objection is served upon the party giving the notice.

NY CPLR RULE RULE 3113. CONDUCT OF THE EXAMINATION

(a) Persons before whom depositions may be taken.  Depositions may be taken before any of the following persons except an attorney, or employee of an attorney, for a party or prospective party and except a person who would be disqualified to act as a juror because of interest in the event or consanguinity or affinity to a party:

  1. within the state, a person authorized by the laws of the state to administer oaths;
  2. without the state but within the United States or within a territory or possession subject to the jurisdiction of the United States, a person authorized to take acknowledgments of deeds outside of the state by the real property law of the state or to administer oaths by the laws of the United States or of the place where the deposition is taken;  and
  3. in a foreign country, any diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds.

Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed “To the Appropriate Authority in (here name the state or country).”

(b) Oath of witness;  recording of testimony;  objections;  continuous examination;  written questions read by examining officer.  The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction, record the testimony.  The testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by the appellate division in the department where the action is pending.  All objections made at the time of the examination to the qualifications of the officer taking the deposition or the person recording it, or to the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order.  The deposition shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree.  In lieu of participating in an oral examination, any party served with notice of taking a deposition may transmit written questions to the officer, who shall propound them to the witness and record the answers.

(c) Examination and cross-examination. Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party.  When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney.  Cross-examination need not be limited to the subject matter of the examination in chief.

(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition;  shall specify who must and who may physically be present at the deposition;  and shall provide for any other provisions appropriate under the circumstances.  Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.

NY CPLR RULE RULE 3114. EXAMINATION OF WITNESS WHO DOES NOT UNDERSTAND THE ENGLISH LANGUAGE

If the witness to be examined does not understand the English language, the examining party must, at his own expense, provide a translation of all questions and answers.  Where the court settles questions, it may settle them in the foreign language and in English.  It may use the services of one or more experts whose compensation shall be paid by the party seeking the examination and may be taxed as a disbursement.

NY CPLR RULE RULE 3115. OBJECTIONS TO QUALIFICATION OF PERSON TAKING DEPOSITION; COMPETENCY; QUESTIONS AND ANSWERS

(a) Objection when deposition offered in evidence.  Subject to the other provisions of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(b) Errors which might be obviated if made known promptly.  Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of persons, and errors of any kind which might be obviated or removed if objection were promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.

(c) Disqualification of person taking deposition.  Objection to the taking of a deposition because of disqualification of the person by whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(d) Competency of witnesses or admissibility of testimony.  Objections to the competency of a witness or to the admissibility of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if objection had been made at that time.

(e) Form of written questions.  Objections to the form of written questions are waived unless served in writing upon the party propounding the questions within the time allowed for serving succeeding questions or within three days after service.

NY CPLR RULE RULE 3116. SIGNING DEPOSITION; PHYSICAL PREPARATION; COPIES

(a) Signing.  The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them.  The deposition shall then be signed by the witness before any officer authorized to administer an oath.  If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed.  No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.

(b) Certification and filing by officer.  The officer before whom the deposition was taken shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness.  He shall list all appearances by the parties and attorneys.  If the deposition was taken on written questions, he shall attach to it the copy of the notice and written questions received by him.  He shall then securely seal the deposition in an envelope endorsed with the title of the action and the index number of the action, if one has been assigned, and marked “Deposition of (here insert name of witness)” and shall promptly file it with, or send it by registered or certified mail to the clerk of the court where the case is to be tried.  The deposition shall always be open to the inspection of the parties, each of whom is entitled to make copies thereof.  If a copy of the deposition is furnished to each party or if the parties stipulate to waive filing, the officer need not file the original but may deliver it to the party taking the deposition.

(c) Exhibits.  Documentary evidence exhibited before the officer or exhibits marked for identification during the examination of the witness shall be annexed to and returned with the deposition.  However, if requested by the party producing documentary evidence or on exhibit, the officer shall mark it for identification as an exhibit in the case, give each party an opportunity to copy or inspect it, and return it to the party offering it, and it may then be used in the same manner as if annexed to and returned with the deposition.

(d) Expenses of taking.  Unless the court orders otherwise, the party taking the deposition shall bear the expense thereof.

(e) Errors of officer or person transcribing.  Errors and irregularities of the officer or the person transcribing the deposition are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

NY CPLR RULE RULE 3117. USE OF DEPOSITIONS

(a) Impeachment of witnesses;  parties;  unavailable witness.  At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions:

  1. any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
  2. the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence;
  3. the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds:
    • (i) that the witness is dead;  or
    • (ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;  or
    • (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment;  or
    • (iv) that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts;  or
    • (v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court;
  4. the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.

(b) Use of part of deposition.  If only part of a deposition is read at the trial by a party, any other party may read any other part of the deposition which ought in fairness to be considered in connection with the part read.

(c) Substitution of parties;  prior actions.  Substitution of parties does not affect the right to use depositions previously taken.  When an action has been brought in any court of any state or of the United States and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest all depositions taken in the former action may be used in the latter as if taken therein.

(d) Effect of using deposition.  A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.  The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use of a deposition as described in paragraph two of subdivision (a).  At the trial, any party may rebut any relevant evidence contained in a deposition, whether introduced by him or by any other party.

NY CPLR RULE RULE 3118. DEMAND FOR ADDRESS OF PARTY OR OF PERSON WHO POSSESSED AN ASSIGNED CAUSE OF ACTION OR DEFENSE

 A party may serve on any party a written notice demanding a verified statement setting forth the post office address and residence of the party, of any specified officer or member of the party and of any person who possessed a cause of action or defense asserted in the action which has been assigned.  The demand shall be complied with within ten days of its service.

NY CPLR § 3119. UNIFORM  INTERSTATE DEPOSITIONS AND DISCOVERY

(a) Definitions.  For purposes of this section:

  1. “Out-of-state subpoena” means a subpoena issued under authority of a court of record of a state other than this state.
  2. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
  3. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  4. “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:
    • (i) attend and give testimony at a deposition;
    • (ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody or control of the person;  or
    • (iii) permit inspection of premises under the control of the person.

(b) Issuance of subpoena.  

  1. (1) To request issuance of a subpoena under this section, a party must submit an out-of-state subpoena to the county clerk in the county in which discovery is sought to be conducted in this state.  A request for the issuance of a subpoena under this section does not constitute an appearance in the courts of this state.
  2. When a party submits an out-of-state subpoena to the county clerk, the clerk, in accordance with that court’s procedure and subject to the provisions of article twenty-three of this chapter, shall promptly issue a subpoena for service upon the person to which the out-of-state subpoena is directed.
  3. A subpoena under paragraph two of this subdivision must:
    • (i) incorporate the terms used in the out-of-state subpoena;  and
    • (ii) contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
  4. Notwithstanding paragraph one of this subdivision, if a party to an out-of-state proceeding retains an attorney licensed to practice in this state, and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section.

(c) Service of subpoena.  A subpoena issued under this section must be served in compliance with sections two thousand three hundred two and two thousand three hundred three of this chapter.

(d) Deposition, production and inspection.   Sections two thousand three hundred three , two thousand three hundred five , two thousand three hundred six , two thousand three hundred seven , two thousand three hundred eight and this article apply to subpoenas issued under subdivision (b) of this section.

(e) Application to court.  An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under this section must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be conducted.

(f) Uniformity of application and construction.  In applying and constructing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

NY CPLR RULE RULE 3120. DISCOVERY AND PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION, TESTING, COPYING OR PHOTOGRAPHING

1. After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum:

  • (i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person served;  or
  • (ii) to permit entry upon designated land or other property in the possession, custody or control of the party or person served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon.

2. The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service of the notice or subpoena, and the place and manner of making the inspection, copy, test or photograph, or of the entry upon the land or other property and, in the case of an inspection, copying, testing or photographing, shall set forth the items to be inspected, copied, tested or photographed by individual item or by category, and shall describe each item and category with reasonable particularity.

3. The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof.

4. Nothing contained in this section shall be construed to change the requirement of section 2307 that a subpoena duces tecum to be served upon a library or a department or bureau of a municipal corporation, or of the state, or an officer thereof, requires a motion made on notice to the library, department, bureau or officer, and the adverse party, to a justice of the supreme court or a judge of the court in which the action is triable.

NY CPLR § 3121. PHYSICAL OR MENTAL EXAMINATION

 (a) Notice of examination.  After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control.  The notice may require duly executed and acknowledged written authorizations permitting all parties to obtain, and make copies of, the records of specified hospitals relating to such mental or physical condition or blood relationship;  where a party obtains a copy of a hospital record as a result of the authorization of another party, he shall deliver a duplicate of the copy to such party.  A copy of the notice shall be served on the person to be examined.  It shall specify the time, which shall be not less than twenty days after service of the notice, and the conditions and scope of the examination.
 
(b) Copy of report.  A copy of a detailed written report of the examining physician setting out his findings and conclusions shall be delivered by the party seeking the examination to any party requesting to exchange therefor a copy of each report in his control of an examination made with respect to the mental or physical condition in controversy.

NY CPLR RULE RULE 3122. OBJECTION TO DISCLOSURE, INSPECTION OR EXAMINATION; COMPLIANCE

(a) 

  1. Within twenty days of service of a notice or subpoena duces tecum under rule 3120 or section 3121 , the party or person to whom the notice or subpoena duces tecum is directed, if that party or person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection.  If objection is made to part of an item or category, the part shall be specified.  The party seeking disclosure under rule 3120 or section 3121 may move for an order under rule 3124 or section 2308 with respect to any objection to, or other failure to respond to or permit inspection as requested by, the notice or subpoena duces tecum, respectively, or any part thereof.

  2. A medical provider served with a subpoena duces tecum, other than a trial subpoena issued by a court, requesting the production of a patient’s medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient.  Any subpoena served upon a medical provider requesting the medical records of a patient shall state in conspicuous bold-faced type that the records shall not be provided unless the subpoena is accompanied by a written authorization by the patient, or the court has issued the subpoena or otherwise directed the production of the documents.

(b) Whenever a person is required pursuant to such a notice, subpoena duces tecum or order to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required by the notice, subpoena duces tecum or order to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld.  This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information:  (1) the type of document;  (2) the general subject matter of the document;  (3) the date of the document;  and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.

(c) Whenever a person is required pursuant to such notice or order to produce documents for inspection, that person shall produce them as they are kept in the regular course of business or shall organize and label them to correspond to the categories in the request.

(d) Unless the subpoena duces tecum directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced.  The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.

NY CPLR RULE RULE 3122-a. not defined

 

NY CPLR § 3123. ADMISSIONS AS TO MATTERS OF FACT, PAPERS, DOCUMENTS AND PHOTOGRAPHS

(a) Notice to admit;  admission unless denied or denial excused.  At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.  Copies of the papers, documents or photographs shall be served with the request unless copies have already been furnished.  Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.  If the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation, or if the matters constitute a trade secret or such party would be privileged or disqualified from testifying as a witness concerning them, such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim and, if the claim is that the matters cannot be fairly admitted without some material qualification or explanation, admitting the matters with such qualification or explanation.

(b) Effect of admission.  Any admission made, or deemed to be made, by a party pursuant to a request made under this rule is for the purpose of the pending action only and does not constitute an admission by him for any other purpose nor may it be used against him in any other proceeding;  and the court, at any time, may allow a party to amend or withdraw any admission on such terms as may be just.  Any admission shall be subject to all pertinent objections to admissibility which may be interposed at the trial.

(c) Penalty for unreasonable denial.  If a party, after being served with a request under subdivision (a) does not admit and if the party requesting the admission thereafter proves the genuineness of any such paper or document, or the correctness or fairness of representation of any such photograph, or the truth of any such matter of fact, he may move at or immediately following the trial for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees.  Unless the court finds that there were good reasons for the denial or the refusal otherwise to admit or that the admissions sought were of no substantial importance, the order shall be made irrespective of the result of the action.  Upon a trial by jury, the motion for such an order shall be determined by the court outside the presence of the jury.

NY CPLR RULE RULE 3124. FAILURE TO DISCLOSE; MOTION TO COMPEL DISCLOSURE

If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123 , the party seeking disclosure may move to compel compliance or a response.

NY CPLR RULE RULE 3125. PLACE WHERE MOTION TO COMPEL DISCLOSURE MADE

Unless otherwise provided by rule of the chief administrator of the courts, the county in which a deposition is being taken or an examination or inspection is being sought may be treated by the moving party as the county in which the action is pending for purposes of section 3124 .

NY CPLR § 3126. PENALTIES FOR REFUSAL TO COMPLY WITH ORDER OR TO DISCLOSE

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party’s control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order;  or

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses;  or

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

NY CPLR § 3130. USE OF INTERROGATORIES

1. Except as otherwise provided herein, after commencement of an action, any party may serve upon any other party written interrogatories.  Except in a matrimonial action, a party may not serve written interrogatories on another party and also demand a bill of particulars of the same party pursuant to section 3041 .  In the case of an action to recover damages for personal injury, injury to property or wrongful death predicated solely on a cause or causes of action for negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of court.

2. After the commencement of a matrimonial action or proceeding, upon motion brought by either party, upon such notice to the other party and to the non-party from whom financial disclosure is sought, and given in such manner as the court shall direct, the court may order a non-party to respond under oath to written interrogatories limited to furnishing financial information concerning a party, and further provided such information is both reasonable and necessary in the prosecution or the defense of such matrimonial action or proceeding.

NY CPLR § 3131. SCOPE OF INTERROGATORIES

Interrogatories may relate to any matters embraced in the disclosure requirement of section 3101 and the answers may be used to the same extent as the depositions of a party.  Interrogatories may require copies of such papers, documents or photographs as are relevant to the answers required, unless opportunity for this examination and copying be afforded.

NY CPLR RULE RULE 3132. SERVICE OF INTERROGATORIES

After commencement of an action, any party may serve written interrogatories upon any other party.  Interrogatories may not be served upon a defendant before that defendant’s time for serving a responsive pleading has expired, except by leave of court granted with or without notice.  A copy of the interrogatories and of any order made under this rule shall be served on each party.

NY CPLR RULE RULE 3133. SERVICE OF ANSWERS OR OBJECTIONS TO INTERROGATORIES

(a) Service of an answer or objection.  Within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity.

(b) Form of answers and objections to interrogatories.  Interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information.  Each question shall be answered separately and fully, and each answer shall be preceded by the question to which it responds.

(c) Amended answers.  Except with respect to amendment or supplementation of responses pursuant to subdivision (h) of section 3101 , answers to interrogatories may be amended or supplemented only by order of the court upon motion.

NY CPLR § 3140. DISCLOSURE OF APPRAISALS IN PROCEEDINGS FOR CONDEMNATION APPROPRIATION OR REVIEW OF TAX ASSESSMENTS

Notwithstanding the provisions of subdivisions (c) and (d) of section 3101 , the chief administrator of the courts shall adopt rules governing the exchange of appraisal reports intended for use at the trial in proceedings for condemnation, appropriation or review of tax assessments.

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