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

                                  4956

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 10, 2009
                               ___________

Introduced by M. of A. V. LOPEZ -- read once and referred to the Commit-
  tee on Judiciary

AN  ACT  to  amend  the civil practice law and rules, in relation to the
  conduct of examinations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Rule 3113 of the civil practice law and rules, paragraph 2
of subdivision (a) as amended by chapter 98 of the laws of 1993,  subdi-
vision  (b)  as amended by judicial conference proposal number 1 for the
year 1977 and subdivision (d) as added by chapter  66  of  the  laws  of
2004, is amended to read as follows:
  Rule 3113. Conduct of the examination. (a) Persons before whom deposi-
tions may be taken. Depositions may be taken before any of the following
persons  [except an attorney, or employee of an attorney, for a party or
prospective party and except a person who would be disqualified  to  act
as a juror because of interest in the event or consanguinity or affinity
to a party]:
  1.  within  the state, a person authorized by the laws of the state to
administer oaths;
  2. without the state but within the United States or within a territo-
ry or possession subject to the jurisdiction of  the  United  States,  a
person  authorized to take acknowledgments of deeds outside of the state
by the real property law of the state or to administer oaths by the laws
of the United States or of the place where the deposition is taken; and
  3. in a foreign country, any diplomatic or consular agent or represen-
tative of the United States, appointed or accredited  to,  and  residing
within,  the  country,  or  a  person  appointed  by commission or under
letters rogatory, or an officer of the armed forces authorized  to  take
the acknowledgment of deeds.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08715-01-9

A. 4956                             2
              

  Officers may be designated in notices or commissions either by name or
descriptive  title  and letters rogatory may be addressed "To the Appro-
priate Authority in (here name the state or country)."
  (b)  PERSONS BEFORE WHOM DEPOSITIONS MAY NOT BE TAKEN. DEPOSITIONS MAY
NOT BE TAKEN BEFORE ANY OF THE FOLLOWING PERSONS:
  1. A PARTY OR A PROSPECTIVE PARTY;
  2. AN ATTORNEY OR AN EMPLOYEE OF AN ATTORNEY FOR A PARTY  OR  PROSPEC-
TIVE PARTY;
  3.  A  PERSON  WHO  WOULD BE DISQUALIFIED TO ACT AS A JUROR BECAUSE OF
INTEREST IN THE EVENT;
  4. A PERSON WITH CONSANGUINITY OR AFFINITY TO A PARTY; OR
  5. A PERSON WHO ENTERS INTO OR PROVIDES SERVICES UNDER A  PREFERENTIAL
AGREEMENT WITH A PARTY.
  (C)  FOR  THE  PURPOSES OF SUBDIVISION (B) OF THIS RULE, "PREFERENTIAL
AGREEMENT" MEANS ANY CONTRACTUAL AGREEMENT, WRITTEN OR ORAL,  EXCLUSIVE,
OR NONEXCLUSIVE WHERE:
  1.  THE AGREEMENT UNDERMINES THE IMPARTIALITY OF THE COURT REPORTER OR
COURT REPORTING AGENCY; OR
  2. A COURT REPORTER GIVES OR APPEARS TO GIVE AN EXCLUSIVE ADVANTAGE TO
ANY PARTY BY PROVIDING ANY SERVICE, TERM OR CONDITION NOT MADE AVAILABLE
TO ALL PARTIES IN AN ACTION. SUCH SERVICES, TERMS AND CONDITIONS INCLUDE
BUT ARE NOT LIMITED TO, TIME AND METHOD OF PAYMENT, TIME AND  METHOD  OF
TRANSCRIPT OR ROUGH DRAFT TRANSCRIPT DELIVERY, DATA-BASING OF DEPOSITION
TRANSCRIPTS,  PROVISION  OF  COMPUTERIZED REAL-TIME SERVICES, WAIVERS OF
CERTAIN FEES OR CHARGES, AND TAKING DEPOSITION SUMMARIES.
  (D) IF A DEPOSITION IS TAKEN BY A PERSON DESCRIBED IN SUBDIVISION  (C)
OF THIS RULE THEN THAT DEPOSITION SHALL BE VOID.
  (E)  THE  PROVISIONS  IN SUBDIVISIONS (B), (C) AND (D) OF THIS RULE DO
NOT APPLY TO A CONTRACT FOR COURT REPORTING SERVICES FOR A COURT,  AGEN-
CY, OR INSTRUMENTALITY OF THE UNITED STATES OR THIS STATE.
  (F)  Oath  of  witness; recording of testimony; objections; continuous
examination; written questions read by examining officer.   The  officer
before  whom the deposition is to be taken shall put the witness on oath
and shall personally, or by someone acting under his  direction,  record
the  testimony. The testimony shall be recorded by stenographic or other
means, subject to such rules as may be adopted by the appellate division
in the department where the action is pending.  All objections  made  at
the  time of the examination to the qualifications of the officer taking
the deposition or the person recording it, or to the  manner  of  taking
it,  or to the testimony presented, or to the conduct of any person, and
any other objection to the proceedings, shall be noted  by  the  officer
upon  the  deposition  and  the  deposition shall proceed subject to the
right of a person to apply for a protective order. The deposition  shall
be  taken  continuously and without unreasonable adjournment, unless the
court otherwise orders or the  witness  and  parties  present  otherwise
agree.    In  lieu  of  participating  in an oral examination, any party
served with notice of taking a deposition may transmit written questions
to the officer, who shall propound them to the witness  and  record  the
answers.
  [(c)]  (G)  Examination and cross-examination.  Examination and cross-
examination of deponents shall proceed as  permitted  in  the  trial  of
actions  in  open court.  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.

A. 4956                             3

  [(d)] (H) The parties may stipulate that  a  deposition  be  taken  by
telephone  or other remote electronic means and that a party may partic-
ipate  electronically.  The  stipulation  shall   designate   reasonable
provisions to ensure that an accurate record of the deposition is gener-
ated,  shall  specify, if appropriate, reasonable provisions for the use
of exhibits at the deposition; shall specify who must and who may  phys-
ically  be  present  at  the deposition; and shall provide for any other
provisions appropriate under the circumstances. Unless otherwise  stipu-
lated  to  by  the  parties, the officer administering the oath shall be
physically present at the place of the  deposition  and  the  additional
costs  of  conducting the deposition by telephonic or other remote elec-
tronic means, such as telephone charges, shall be  borne  by  the  party
requesting that the deposition be conducted by such means.
  S  2.  This  act shall take effect on the thirtieth day after it shall
have become a law.