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This entry was published on 2014-09-22
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SECTION 3101
Scope of disclosure
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 31
§ 3101. Scope of disclosure. (a) Generally. There shall be full
disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof, by:

(1) a party, or the officer, director, member, agent or employee of a
party;

(2) a person who possessed a cause of action or defense asserted in
the action;

(3) a person about to depart from the state, or without the state, or
residing at a greater distance from the place of trial than one hundred
miles, or so sick or infirm as to afford reasonable grounds of belief
that he or she will not be able to attend the trial, or a person
authorized to practice medicine, dentistry or podiatry who has provided
medical, dental or podiatric care or diagnosis to the party demanding
disclosure, or who has been retained by such party as an expert witness;
and

(4) any other person, upon notice stating the circumstances or reasons
such disclosure is sought or required.

(b) Privileged matter. Upon objection by a person entitled to assert
the privilege, privileged matter shall not be obtainable.

(c) Attorney's work product. The work product of an attorney shall not
be obtainable.

(d) Trial preparation.

1. Experts. (i) Upon request, each party shall identify each person
whom the party expects to call as an expert witness at trial and shall
disclose in reasonable detail the subject matter on which each expert is
expected to testify, the substance of the facts and opinions on which
each expert is expected to testify, the qualifications of each expert
witness and a summary of the grounds for each expert's opinion. However,
where a party for good cause shown retains an expert an insufficient
period of time before the commencement of trial to give appropriate
notice thereof, the party shall not thereupon be precluded from
introducing the expert's testimony at the trial solely on grounds of
noncompliance with this paragraph. In that instance, upon motion of any
party, made before or at trial, or on its own initiative, the court may
make whatever order may be just. In an action for medical, dental or
podiatric malpractice, a party, in responding to a request, may omit the
names of medical, dental or podiatric experts but shall be required to
disclose all other information concerning such experts otherwise
required by this paragraph.

(ii) In an action for medical, dental or podiatric malpractice, any
party may, by written offer made to and served upon all other parties
and filed with the court, offer to disclose the name of, and to make
available for examination upon oral deposition, any person the party
making the offer expects to call as an expert witness at trial. Within
twenty days of service of the offer, a party shall accept or reject the
offer by serving a written reply upon all parties and filing a copy
thereof with the court. Failure to serve a reply within twenty days of
service of the offer shall be deemed a rejection of the offer. If all
parties accept the offer, each party shall be required to produce his or
her expert witness for examination upon oral deposition upon receipt of
a notice to take oral deposition in accordance with rule thirty-one
hundred seven of this chapter. If any party, having made or accepted the
offer, fails to make that party's expert available for oral deposition,
that party shall be precluded from offering expert testimony at the
trial of the action.

(iii) Further disclosure concerning the expected testimony of any
expert may be obtained only by court order upon a showing of special
circumstances and subject to restrictions as to scope and provisions
concerning fees and expenses as the court may deem appropriate. However,
a party, without court order, may take the testimony of a person
authorized to practice medicine, dentistry or podiatry who is the
party's treating or retained expert, as described in paragraph three of
subdivision (a) of this section, in which event any other party shall be
entitled to the full disclosure authorized by this article with respect
to that expert without court order.

2. Materials. Subject to the provisions of paragraph one of this
subdivision, materials otherwise discoverable under subdivision (a) of
this section and prepared in anticipation of litigation or for trial by
or for another party, or by or for that other party's representative
(including an attorney, consultant, surety, indemnitor, insurer or
agent), may be obtained only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of
the case and is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of the
materials when the required showing has been made, the court shall
protect against disclosure of the mental impressions, conclusions,
opinions or legal theories of an attorney or other representative of a
party concerning the litigation.

(e) Party's statement. A party may obtain a copy of his own statement.

(f) Contents of insurance agreement. A party may obtain discovery of
the existence and contents of any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy part
or all of a judgment which may be entered in the action or to indemnify
or reimburse for payments made to satisfy the judgment. Information
concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial. For purpose of this subdivision, an
application for insurance shall not be treated as part of an insurance
agreement.

(g) Accident reports. Except as is otherwise provided by law, in
addition to any other matter which may be subject to disclosure, there
shall be full disclosure of any written report of an accident prepared
in the regular course of business operations or practices of any person,
firm, corporation, association or other public or private entity, unless
prepared by a police or peace officer for a criminal investigation or
prosecution and disclosure would interfere with a criminal investigation
or prosecution.

(h) Amendment or supplementation of responses. A party shall amend or
supplement a response previously given to a request for disclosure
promptly upon the party's thereafter obtaining information that the
response was incorrect or incomplete when made, or that the response,
though correct and complete when made, no longer is correct and
complete, and the circumstances are such that a failure to amend or
supplement the response would be materially misleading. Where a party
obtains such information an insufficient period of time before the
commencement of trial appropriately to amend or supplement the response,
the party shall not thereupon be precluded from introducing evidence at
the trial solely on grounds of noncompliance with this subdivision. In
that instance, upon motion of any party, made before or at trial, or on
its own initiative, the court may make whatever order may be just.
Further amendment or supplementation may be obtained by court order.

(i) In addition to any other matter which may be subject to
disclosure, there shall be full disclosure of any films, photographs,
video tapes or audio tapes, including transcripts or memoranda thereof,
involving a person referred to in paragraph one of subdivision (a) of
this section. There shall be disclosure of all portions of such
material, including out-takes, rather than only those portions a party
intends to use. The provisions of this subdivision shall not apply to
materials compiled for law enforcement purposes which are exempt from
disclosure under section eighty-seven of the public officers law.