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 non-party 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 N Y S
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
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
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.
2012 LEGISLATIVE HISTORY:
Senate 6656 (Bonacic) [Judiciary]
Assembly 9479 (M. of A. O'Donnell, et al) [Judiciary]