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.
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[(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.