senate Bill S6656

Amended

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

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
  • 19 / Apr / 2012
    • AMEND AND RECOMMIT TO JUDICIARY
  • 19 / Apr / 2012
    • PRINT NUMBER 6656A
  • 05 / Jun / 2012
    • 1ST REPORT CAL.1047
  • 06 / Jun / 2012
    • 2ND REPORT CAL.
  • 11 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

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.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A9479
Versions:
S6656
S6656A
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd R3113, CPLR

Sponsor Memo

BILL NUMBER:S6656

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 nonparty 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 NYS
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.

LEGISLATIVE HISTORY:
None. New proposal.

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

                                  6656

                            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 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 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 exam-
ination 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.
                                                           LBD14027-01-2

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.