Authorizes a non-party deponent's counsel to participate and make objections on behalf of his or her client in an examination before trial in the same manner as counsel for a party.
TITLE OF BILL: An act to amend the civil practice law and rules, in relation to conduct of the examination before trial
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 legislatively to overrule the result in the Appellate Division, Fourth Department, decision in Thompson v. Mather, 70 AD3d 1436 (4th Dept 2010).
In Thompson, a medical malpractice action, arrangements were made for the videotaped depositions - for use at trial [22 NYCRR 202.15] - of plaintiffs treating physicians. During the course of those depositions, the attorney for a witness objected to the form and relevance of certain questions. The Appellate Division ultimately ruled that "counsel for a non-party witness does not have a right to object during or otherwise to participate in a pretrial deposition." The Court principally relied upon the language of CPLR 3113(c), which provides that the examination of witnesses at a deposition "shall proceed as permitted in the trial of actions in open court." The Court reasoned that, since a non-party's attorney has no right to interpose objections to questions asked of the witness at trial, no such right exists at deposition.
While the Thompson Court may have correctly interpreted the literal language of the statute, we believe the law should be otherwise. In reducing counsel for a deposition witness to a "potted plant" [Sciara v. Surgical Associates of Western New York, P.C., _Misc 3d _,927 N Y S 2d 770 (Sup. Ct. Erie Co.2011)], the law as interpreted by the Thompson court leaves a non-party witness essentially unprotected during a deposition.
A lay witness may not, for example, know when to decline to answer a question because it invades a privilege, or is plainly improper and would, if answered, cause significant prejudice to any person. Moreover, a likely result of application of the Thompson ruling is that a party will be encouraged to depose a potential adverse party before joining that person as a party to the action, in order to be able to avoid the objections that a party's lawyer would be able to make at a post-joinder deposition. We believe that the law ought to discourage this strategy.
In the Sciara decision cited above, Supreme Court interpreted Thompson's restrictions as being limited to objections to form or relevance. That interpretation, if upheld, would ameliorate the deleterious effects of Thompson. But we believe that a witness's attorney should be able to protect all of the witness's interests, and have the same right to object at a deposition as does an attorney for a party.
Accordingly, we have recommended an amendment to CPLR 3113(c) to specifically provide that a non-party's counsel "may participate in
the deposition and make objections in the same manner as counsel for a party."
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.
2012 LEGISLATIVE HISTORY: Senate 6656 (Bonacic) [Judiciary] Assembly 9479 (M. of A. O'Donnell, et al) [Judiciary]
STATE OF NEW YORK ________________________________________________________________________ 6656--A 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 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the civil practice law and rules, in relation to conduct of the examination before trial THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (c) of rule 3113 of the civil practice law and rules is amended to read as follows: (c) Examination and cross-examination. Examination and cross-examina- tion 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 own attorney. Cross-examination need not be limited to the subject matter of the examination in chief. S 2. 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.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14027-03-2