Senate Bill S7043

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7043
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 17, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- 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 the use
   of writings and objects to refresh recollection
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 4550 to read as follows:
   §  4550.  WRITINGS AND OBJECTS USED TO REFRESH RECOLLECTION. (A) WHILE
 TESTIFYING.    EXCEPT  AS  OTHERWISE  PROVIDED  BY   LAW   IN   CRIMINAL
 PROCEEDINGS, IF A WITNESS WHILE TESTIFYING AT A TRIAL, HEARING, OR DEPO-
 SITION  USES  A  WRITING,  AN  OBJECT,  OR OTHER MATERIAL TO REFRESH THE
 WITNESS' RECOLLECTION FOR THE PURPOSE OF TESTIFYING AT THE TRIAL,  HEAR-
 ING, OR DEPOSITION, AN ADVERSE PARTY IS ENTITLED TO INSPECT THE WRITING,
 OBJECT,  OR  OTHER  MATERIAL  AT  THAT TIME. THE DISCLOSURE SHALL NOT BE
 BARRED BY ANY COMMON LAW OR STATUTORY PRIVILEGE, WORK PRODUCT PROTECTION
 UNDER SUBDIVISION (C) OF SECTION THIRTY-ONE HUNDRED ONE OF THIS CHAPTER,
 OR TRIAL PREPARATION PROTECTION UNDER SUBPARAGRAPH  TWO  OF  SUBDIVISION
 (D) OF SECTION THIRTY-ONE HUNDRED ONE OF THIS CHAPTER OTHERWISE APPLICA-
 BLE TO THE WRITING, OBJECT, OR OTHER MATERIAL.
   (B)    BEFORE TESTIFYING. IF BEFORE TESTIFYING AT A TRIAL, HEARING, OR
 DEPOSITION A WITNESS HAS USED A WRITING, AN OBJECT, OR OTHER MATERIAL TO
 REFRESH THE WITNESS' RECOLLECTION,  AND  THE  COURT  IN  ITS  DISCRETION
 DETERMINES  THE  INTERESTS  OF  JUSTICE  SO REQUIRE, AN ADVERSE PARTY IS
 ENTITLED TO PRODUCTION OF THE WRITING, OBJECT, OR OTHER MATERIAL AT  THE
 TRIAL, HEARING, OR DEPOSITION WHERE THE WITNESS IS TESTIFYING OR AS SOON
 AFTERWARD  AS  PRACTICABLE. AMONG THE FACTORS TO BE CONSIDERED IN DETER-
 MINING WHETHER PRODUCTION IS TO BE ORDERED ARE  THE  IMPORTANCE  OF  THE
 WITNESS'  TESTIMONY, THE EXTENT TO WHICH THE WITNESS' TESTIMONY OVERLAPS
 WITH THE CONTENTS OF THE WRITING, OBJECT, OR OTHER  MATERIAL  USED,  THE
 AMOUNT  OF TIME ELAPSED BETWEEN THE USE OF THE WRITING, OBJECT, OR OTHER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11466-01-3
              

 S. 7043                             2
 
 MATERIAL TO REFRESH RECOLLECTION AND THE  WITNESS'  TESTIMONY,  AND  THE
 NEED  OF  THE PARTY SEEKING PRODUCTION TO TEST THE WITNESS' CREDIBILITY.
 THE PRIVILEGED OR PROTECTED NATURE OF THE MATERIAL SOUGHT TO BE PRODUCED
 SHALL  NOT  BAR  PRODUCTION,  BUT  THE COURT MAY CONSIDER ANY APPLICABLE
 PRIVILEGE OR PROTECTION AS A FACTOR IN THAT DETERMINATION.
   (C) TERMS OF PRODUCTION AND USE.  WHEN THE ADVERSE PARTY  IS  ENTITLED
 TO  PRODUCTION  OF THE WRITING, OBJECT, OR OTHER MATERIAL UNDER SUBDIVI-
 SION (A) OR (B) OF THIS SECTION, THE ADVERSE PARTY MAY USE  THE  DISCLO-
 SURE  TO CROSS-EXAMINE THE WITNESS ABOUT IT AND, ONLY FOR THE PURPOSE OF
 IMPEACHING THE WITNESS, MAY INTRODUCE IN EVIDENCE PORTIONS  THAT  RELATE
 TO  THE WITNESS' TESTIMONY. IF THE PARTY RESISTING PRODUCTION CLAIMS THE
 WRITING, OBJECT, OR OTHER MATERIAL  INCLUDES  MATTER  UNRELATED  TO  THE
 WITNESS'  TESTIMONY,  THE  COURT  SHALL  EXAMINE THE WRITING, OBJECT, OR
 OTHER MATERIAL IN CAMERA AND EXCISE ANY UNRELATED MATTER. IF  THE  WRIT-
 ING, OBJECT, OR OTHER MATERIAL IS NOT PRODUCED AS ORDERED, THE COURT MAY
 ISSUE ANY FURTHER ORDER THE INTERESTS OF JUSTICE REQUIRE.
   § 2. This act shall take effect immediately.