TITLE OF BILL:
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
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.
None. New proposal.