senate Bill S6651

Relates to the scope of disclosure by a non-party

download pdf

Sponsor

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 08 / Mar / 2012
    • REFERRED TO JUDICIARY
  • 20 / Mar / 2012
    • 1ST REPORT CAL.397
  • 21 / Mar / 2012
    • 2ND REPORT CAL.
  • 22 / Mar / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

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.

do you support this bill?

Bill Details

Versions:
S6651
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd ยง3101, CPLR

Sponsor Memo

BILL NUMBER:S6651

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6651

                            I N  S E N A T E

                              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 provisions

 EXPLANATION--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.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.