Prevents abuse during discovery

1 Co-sponsor

• Kevin S. Parker

BILL NUMBER:S4850

Title of bill

An act to amend the civil practice law and rules, in relation to prevention of abuse during discovery

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.

This measure would amend CPLR § 3103(a) to expand the delineated persons who may seek the remedy of a protective order in regard to the use of discovery devices such as a subpoena for records.

Presently the statute contemplates protective orders made by the court on its own motion or on motion of a party or a person from whom discovery is sought. Not addressed is a person about whom records are being subpoenaed from either a party or another nonparty. By way of example, if an accountant is subpoenaed to produce the records of clients who are not parties to the litigation, it is unclear under the present statute whether the non-party clients would have standing to object to the production of their records.

It would be an unwarranted anomaly for such non-parties to have less of a right to protect their records than those persons already delineated in the statute.

It should be noted that it is not the purpose of this amendment to change existing case law as to whether or not a third party has a protectable interest in certain records. See, Norkin v. Hoey, 181 A.D.2d 248, 252 (1st Dept., 1992) (bank records); People v. DiRaffaele, 55 N.Y.2d 234 (1982) (telephone records). This measure would solely provide a procedural mechanism by which a person, whose information is contained in the records sought, may object to the subpoena.

This measure would have no fiscal impact on the State. It would take effect immediately and apply to all actions pending on such effective date or commenced on or after such effective date.

Legislative History: None. New proposal.