Relates to conduct of the examination before trial

BILL NUMBER:S5077

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.

This measure would amend CPLR 3113(c) in relation to participation of a non-party's counsel in a deposition.

In Thompson v. Mather, 70 AD3d 1436 (4th Dept. 2010), a medical malpractice action, arrangements had been made for videotaped depositions - for use at trial (22 NYCRR 202.15) - of plaintiff's 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 nonparty 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." And, reasoned the Court, 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 recognizing that the Thompson Court may have correctly interpreted the literal language of the statute, our Committee believes that the law should provide otherwise. In reducing counsel for a deposition witness to a "potted plant" (Sciara v. Surgical Associates of Western New York, P.C., 32 Misc.3d 904 (Sup. Ct. Erie Co.2011)), current law, as recognized in Thompson, 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. Our Committee believes that this strategy ought not be promoted.

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 our Committee believes 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 a party.

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 on behalf of his or her client in the same manner as counsel for a party."

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-A (Bonacic; NO SAME AS) (Rules) Assembly 9479 (M. of A. O'Donnell) (Judiciary)