Relates to the scope of disclosure by a non-party; requires full disclosure in a civil action of all matter material and necessary by any person and provides that a subpoena on a non-party shall state the nature of the action; allows a party in a civil action, without court order, to take testimony of a person authorized to practice medicine who has provided care to that party or has been retained by that party as an expert witness.
TITLE OF BILL: An act to amend the civil practice law and rules, in relation to the scope of disclosure by a non-party
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.
The purpose of this measure is to clarify the scope of disclosure available with respect to non-parties to an action, and to resolve a split among the various Departments of the Appellate Division.
Prior to 1984, non-party disclosure was only available by court order, upon a motion by the party seeking such disclosure. And the burden on the moving party was to demonstrate "special circumstances" warranting disclosure by a non-party. In 1984, CPLR 3101(a) was amended. First, the amendment permitted the party seeking disclosure to serve a subpoena upon the non-party, without the need to first obtain permission of the court. Second, the amendment rejected the "special circumstances" test. Instead, the current statute simply requires that the subpoena, and the notice served on all other parties, state "the circumstances or reasons such disclosure is sought or required" [CPLR 3101(a)(4)].
Despite the 1984 amendment, the Appellate Division, Second Department, continued to apply the "special circumstances" test whenever a non-party sought to challenge a disclosure subpoena [see, Dioguardi v. St. John's Riverside Hospital, 144 AD2d 333 (2d Dept. 1988); Matter of Cavallo, 66 AD3d 675 (2d Dept. 2009)]. The First and Fourth Departments, however, disagreed, holding that the purpose of the amendment was to eliminate that test, and treat non-parties equally with parties with respect to disclosure [see, Matter of New York County DES Litigation, 171 AD2d 119 (1st Dept. 1991 )(the test is "usefulness and reason," and the barrier is "truly a nominal one"); Cavaretta v. George, 270 AD2d 862 (4th Dept. 2000)].
Recently, the Second Department has revisited the issue, and, while conceding that the "special circumstances" test no longer appears in the statute, held that "a motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty" [Kooper v. Kooper, 74 AD3d 6 (2d Dept. 2010)]. The Third Department has agreed with that conclusion, noting that, by contrast, "the Appellate Division, Fourth Department has evidently adopted" the "material and necessary" standard for non-party disclosure [Matter of Troy Sand & Gravel Company, Inc. v. Town of Nassau, 80 AD3d 199 (3d Dept. 2010)].
The First Department has recently reiterated its view that the statute mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action," and that "the person seeking to quash a subpoena bears 'the burden of establishing that the requested documents and records are utterly irrelevant'" [Ledonne v. Orsid Realty Corp., 83 AD3d 598 (1st Dept. 2011)].
In our view, the First and Fourth Department views are to be preferred, and the statute should be amended in order to make clear that no statutory barrier prevents disclosure of all matter "material and necessary" to an action, whether possessed by a party or a non-party. We believe that the fact that information held by a non-party may also be within the knowledge of a party should not, in and of itself, be a basis for precluding discovery of that non-party. A party's right to discovery of all the material and necessary facts, and its right to seek confirmation, or to test the veracity of, a party's version of the facts should be liberally construed.
Of course, in any individual instance, the court retains the discretionary authority to "make a protective order denying, limiting, conditioning or regulating the use of any disclosure device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts" [CPLR 31 03(a)]. Moreover, the non-party will not have to bear the expense of any production. CPLR 3l22(d) provides, in relevant part, that "the reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery."
This measure would have no fiscal impact on the State. It would take effect immediately and shall apply to all actions pending on such effective date or commenced on or after such effective date.
LEGISLATIVE HISTORY: None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 6651 IN SENATE March 8, 2012 ___________Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to the scope of disclosure by a non-party THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (a) of section 3101 of the civil practice law and rules, as amended by chapter 98 of the laws of 1993, is amended to read as follows: (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 author- ized 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]ANY PERSON. A SUBPOENA SERVED UPON A NON-PARTY SHALL STATE THE NATURE OF THE ACTION. S 2. Subparagraph (iii) of paragraph 1 of subdivision (d) of section 3101 of the civil practice law and rules, as amended by chapter 184 of the laws of 1988, is amended to read as follows: (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 provisionsEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14026-01-2 S. 6651 2
concerning fees and expenses as the court may deem appropriate. However, a party, without court order, may take the testimony of a person author- ized to practice medicine, dentistry or podiatry who
[is the party's treating or retained expert, as described in paragraph three of subdivi- sion (a) of this section,]HAS PROVIDED MEDICAL, DENTAL OR PODIATRIC CARE OR DIAGNOSIS TO THAT PARTY OR WHO HAS BEEN RETAINED BY THAT PARTY AS AN EXPERT WITNESS 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. S 3. This act shall take effect immediately and shall apply to all actions pending on such effective date or commenced on or after such effective date.