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 admissions, and notices to inspect, copy, and photograph documents. • New York allows full disclosure of all evidence material and necessary in the prosecution or defense of an action.

• New York allows electronic discovery. • Information is obtainable by one or more discovery 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 motion 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), interrogatories, demands for addresses, discovery or inspection of documents or property, physical and mental examinations of persons, and requests for admissions (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 (CPLR 3043). DEPOSITION. CPLR 3106–3117 controls the deposition 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 (CPLR 3107). 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, based on CPLR 3041). In negligence actions, a party may not serve interrogatories and conduct a deposition of the same party without court order (CPLR 3107 and CPLR 3130). REQUEST FOR DISCOVERY AND PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION, TESTING, COPYING, OR PHOTOGRAPHING. 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 documents that are in the possession, custody, or control of the party served, as specified with reasonable particularity in the notice (CPLR 3120(1)(i)). Inspection of land is governed by CPLR 3120(1)(ii). PHYSICAL AND MENTAL EXAMINATIONS. When the physical or mental condition of a party is in controversy, any party may serve notice to submit to a physical

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test or blood examination. The notice may require written authorizations permitting all parties to make copies of medical records (CPLR3121). 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 request 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 (CPLR 3123(a)). AMOUNT OF TIME

After the commencement of an action, either party may serve written interrogatories (CPLR 3130). An answer to the interrogatories shall be served within twenty (20) days after service of the interrogatories (CPLR 3133(a)). DISCOVERY AND ESI

forth in CPLR 3120. The request for discovery should be carefully drafted to include all sources of electronic data that may be stored by the other party. Apart from an onsite inspection of the opposing party’s computer and data systems, the requesting party may want to consider the types of data and methods of data storage, including, but not limited to e-mail, laptops, CD-ROMs, flash drives, and servers. As discussed in the main text, the different types of data are not only the direct electronic data, but may include metadata, backup tapes, and deleted electronic information that may be retrieved. The format for electronic discovery can be decided by the responding party if the records are kept in the ordinary course of business pursuant to CPLR 3122(c). Article 31 of the CPLR states that the requesting party should bear the costs of discovery and New York courts have followed that principle in the preliminary aspects of electronic discovery. See Lipco Elec. Corp. v. ASG Consulting Corp., 798 NYS2d 345 (Sup. 2004).

The New York CPLR does not directly address electronic discovery but does allow for it under the provisions set

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 (CPLR 3101). Information is obtainable by one or more discovery devices (CPLR 3102). LIMITS ON DISCOVERY

THE ATTORNEY-CLIENT PRIVILEGE. CPLR 4503 and CPLR 3101(b) 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 matter of the expected testimony, the substance of the facts and opinions which each expert is expected to testify to, the qualifications of the expert, and the summary of grounds for the expert’s opinion (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 (CPLR 3101(d)).

COOPERATING WITH DISCOVERY ____________________________________________________ DISCOVERY CONFERENCES

ORDER TO COMPEL DISCOVERY

In the event that supervision of disclosure is deemed necessary, a motion may be made to the court for relief (CPLR 3104). Local court rules should always be consulted. Also, the Uniform Rules for the county and the supreme courts should be consulted regarding the Individual Assignment System (lAS), where a single judge is provided for the continuous supervision of all civil actions. See or for court rules.

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 disclosure 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 relevant be

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CHAPTER 9 Depositions

deemed resolved for purposes of the action in accordance with the claim of the party seeking the order, or issue an order prohibiting the disobedient party from supporting

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or opposing any claims or defenses (including defenses), or an order striking the pleadings, dismissing the action, or rendering a default judgment. (CPLR 3126).

CHAPTER 9

Depositions KEY POINTS ________________________________________________________________________ • 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.

• Parties may consent to electronic depositions. • Objections as to the form of questions posed are deemed waived unless objected to at the deposition.

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.

seeking a deposition should consider the documents produced by that system and any policies related to that system that have been put in place. This may include how the information has been accumulated, stored, and retrieved.

TELEPHONE AND ELECTRONIC DEPOSITIONS

VIDEOTAPE DEPOSITIONS

Parties may agree to a telephone or other type of electronic deposition pursuant to CPLR 3113(d). There should be a qualified person present with the deponent to administer an oath. For an opposing party’s computer system, the party

Videotape depositions are permitted pursuant to CPLR 3113(b). For rules concerning electronic recording of depositions see CPLR 3113(d).

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 DEPOSITION. The notice may require that books, papers, and other things be produced at the examination (CPLR 3111). SUBPOENA REQUIREMENT

tecum, the subpoena requiring document production, is in CPLR 3120. 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 transaction of business or where the action is pending (CPLR 3110(l)).

SUBPOENA. CPLR 3106(b) requires service of a subpoena to examine a nonparty witness. Subpoena duces © 2009 Delmar, Cengage Learning. All Rights Reserved.

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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 (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 (CPLR 3116(d)). In some locations, local practice dictates that all parties share in the cost equally.

THE DEPOSITION UPON WRITTEN QUESTIONS ________________________________________ This is governed by CPLR 3108 and CPLR 3109. Depositions 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 (CPLR 3109).

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 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 interrogatories and a notice of deposition upon the same party in a personal injury action. • A party who objects to answering an interrogatory may set forth the objection to the interrogatory 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 ( CPLR 3132). A party has twenty (20) days after service of interrogatories to serve a copy of the answer to interrogatories. Interrogatories should be answered in writing and under oath (CPLR 3133).

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CHAPTER 10 Interrogatories

SCOPE AND NUMBER OF INTERROGATORIES

Interrogatories may relate to any matter outlined in CPLR 3101 relating to the scope of disclosure (CPLR 3131). Generally, there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an

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action (CPLR 3101). There is no limit on the number of interrogatories 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 (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 (CPLR 3130(l)). Also, a party may not serve interrogatories and demand a bill of particulars, except in a matrimonial action (CPLR 3130 and CPLR 3041).

EXPERT WITNESSES

Interrogatories are not be used to determine the identity of expert witnesses. A demand for disclosure of this information 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 (CPLR 3133).

DUTY TO SUPPLEMENT ANSWERS

In New York, a party shall amend or supplement a response previously given to a request for disclosure promptly when the party obtains information that the response was incorrect or incomplete when made. Also, there is a duty to amend if 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 (CPLR 3101(h) and CPLR 3133(c)).

MOTION TO COMPEL DISCLOSURE

If a party fails to comply with a discovery request, a motion to compel disclosure under CPLR 3124 can be brought.

DRAFTING ANSWERS TO INTERROGATORIES __________________________________________ DETERMINING TIME LIMITS

OBJECTING TO INTERROGATORIES

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 (CPLR 3133(a)).

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 interrogatories (CPLR 3133).

FORM OF THE ANSWERS

INADMISSIBLE AND IRRELEVANT EVIDENCE

Each question shall be answered separately and fully and each answer shall be preceded by the question to which it responds (CPLR 3133(b)).

There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action (CPLR 3101(a)).

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 (CPLR 3131 and CPLR 4518). © 2009 Delmar, Cengage Learning. All Rights Reserved.

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CHAPTER 11

Physical and Mental Examinations KEY POINTS ________________________________________________________________________ • After the start of an action, any party may serve notice on another party to submit to physical, mental, or blood examination 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.

THE PHYSICAL OR MENTAL EXAMINATION ____________________________________________ TYPES OF CASES USING PHYSICAL OR MENTAL EXAMINATIONS

notice on another party to submit to a physical, mental, or blood examination (CPLR 3121).

After the start of an action where the mental or physical condition of a party is in question, any party may serve

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

MANDATORY FILING IN MALPRACTICE CASES

In New York, there is no provision for an approved list of impartial experts.

Not later than 60 days after issue is joined, a plaintiff must file a notice of malpractice action with the clerk of the court (CPLR 3406(a)).

DISTRIBUTING THE MEDICAL RECORDS

A copy of a detailed written report of the examining physician setting out his or her 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 or her control of examinations made with respect 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). A medical provider may not need to respond to a subpoena duces tecum for medical records if it is not accompanied by the patient’s written authorization, conforming to HIPAA regulations, or a court order (CPLR 3122(a)). The opposing party may also seek a protective order preventing disclosure (CPLR 3103).

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 (CPLR 3407). PRECALENDAR CONFERENCES

A pre-calendar conference is required in malpractice actions (CPLR 3406(b)). For individual judges’ rules, see .

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CHAPTER 11 Physical and Mental Examinations

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Exhibit 11-1 HIPAA Authorization. Form can be found at and it should be checked before use as the form is subject to change.

continued

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Exhibit 11-1 HIPAA Authorization. Form can be found at and it should be checked before use as the form is subject to change. (continued)

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CHAPTER 12 Request for Documents

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CHAPTER 12

Request for Documents KEY POINTS ________________________________________________________________________ • 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 insurance agreement, and accident reports. • There shall be full disclosure of films, photographs, videotapes, or audio tapes, including transcripts or memoranda thereof. • A party may be required to produce books or papers 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, survey, sample, test photograph, or record the property.

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 disclosure of any films, photographs, video or audiotapes, including transcripts or memoranda (CPLR 3101(i)). Discovery is usually conducted on notice without leave of the court (CPLR 3102(b)). REQUEST FOR DOCUMENTS AT THE DEPOSITION OF A PARTY. Books or papers may be required to be produced at a deposition of a party (CPLR 3111). SUBPOENAS DUCES TECUM FOR A NONPARTY TO PRODUCE DOCUMENTS AT A DEPOSITION. 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 (CPLR 3102(b)). The notice shall specify the time to respond, which cannot be less than twenty (20) days

after service of the notice or subpoena (CPLR 3120). Disclosure may be made before an action is commenced but only by court order (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 (CPLR 3120(1)(i)). A party may also be permitted to enter upon designated 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 specifically designated object or operation thereon (CPLR 3120( 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).

THE ATTORNEY-CLIENT PRIVILEGE

Evidence of a confidential communication made between the attorney and the client in the course of professional

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employment shall not be disclosed (CPLR 3101 and CPLR 4503). THE WORK PRODUCT PRIVILEGE

PROTECTIVE ORDERS

The court may, either on its own initiative or on motion of a party, make a protective order denying, limiting, conditioning, or regulating disclosure devices (CPLR 3103).

The work product of an attorney shall not be obtained by the opposing party (CPLR 3101 (c)).

REQUESTING THE PRODUCTION OF DOCUMENTS _____________________________________ 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 incorrect or incomplete when made, or that the response though correct and complete when made, no longer is correct and complete. A party shall also amend a response when a failure to amend or supplement the response would be materially misleading (CPLR 3101(h)).

FINAL RESPONSIBILITY IN DRAFTING THE REQUEST

There is no requirement that the request for documents be filed (CPLR 2101(d)). All pleadings must be signed by an attorney or the party if they are self-represented. Each paper served or filed by electronic means should be reproduced by the receiver (CPLR 2101(g)). 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).

manner of making the inspection, copy, test, or photograph, or the entry upon the land or other property in possession, custody, or control of party served (CPLR 3120).

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

CHAPTER 13

Request for Admission 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 admission of: the genuineness of papers or documents;

the 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 matters of which an admission is requested.

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CHAPTER 13 Request for Admission

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THE REQUEST FOR ADMISSION _______________________________________________________ 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 fairness of representation of any photographs, or the truth of any matter set forth in the request. Each of these matters shall be deemed admitted unless denied within twenty (20) days after service ( CPLR 3123(a)).

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 qualification 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 material qualification or explanation, a statement may be made admitting the matter with the explanation or qualification (CPLR 3123(a)).

ADVANTAGES OF THE REQUEST FOR ADMISSION

In response to a request for an admission, a party may specifically admit or deny the matters of which an admission

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 (CPLR 3123(a)). The admission by a party is for the pending action only, and does not make it an admission against him or her in any other proceedings (CPLR 3123(b)).

OBJECTIONS TO THE REQUEST FOR ADMISSION

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). A party may seek reasonable expenses (including attorney’s fees) for proving the genuineness of any document or truth of any matter of fact whereby the opposing party does not admit to the request for that admission (CPLR 3123(c)).

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