Relates to the scope of disclosure by a non-party

The purpose of this measure is to clarify the scope of disclosure available with respect to non-parties to an action, and to resolve a split among the various Departments of the Appellate Division. While we have submitted this proposal in the past, it has been modified this year to clarify that the language of CPLR 3101(d)(1)(iii) is specifically meant to preserve existing law under section 3101(a)(3)(deleted by this measure) to allow disclosure of the person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to that party demanding disclosure or who has been retained by that party as an expert witness.

Prior to 1984, CPLR 3101 provided that non-party disclosure would be available only upon a motion showing "special circumstances" warranting disclosure by a non-party. In 1984, CPLR 3101(a) was amended. First, the amendment permitted the party seeking a deposition to serve a subpoena upon the non-party, without the need to first obtain permission of the court. Second, the amendment rejected the "special circumstances" test. Instead, the current statute simply requires that the subpoena, and the notice served on all other parties, state "the circumstances or reasons such disclosure is sought or required" (CPLR 3101(a)(4)).

Despite the 1984 amendment, the Appellate Division, Second Department, continued to apply the "special circumstances" test whenever a non-party sought to challenge a disclosure subpoena (see, Dioguardi St. John's Riverside Hospital, 144 AD2d 333 (2d Dept. 1988); Matter of Cavallo, 66 AD3d 675 (2d Dept. 2009)1. The First and Fourth Departments, however, disagreed, holding that the purpose of the amendment was to eliminate that test, and treat non-parties equally with parties with respect to disclosure (see, Matter of New York County DES Litigation, 171 AD2d 119 (1st Dept. 1991)(the test is "usefulness and reason," and the barrier is "truly a nominal one"); Cavaretta v. George, 270 AD2d 862 (4th Dept. 2000)).

Recently, the Second Department has revisited the issue, and, while conceding that the "special circumstances" test no longer appears in the statute, held that "a motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty" (Kooper v. Kooper, 74 AD3d 6 (2d Dept. 2010)). The Third Department has agreed with that conclusion, noting that, by contrast, "the Appellate Division, Fourth Department has evidently adopted" the "material and necessary" standard for non-party disclosure (Matter of Troy Sand & Gravel Company, Inc. v. Town of Nassau, 80 AD3d 199 (3d Dept. 2010)).

The First Department has recently reiterated its view that the statute mandates "full disclosure of all matter material and necessary in the prosecution of defense of an action," and that "the person seeking to quash a subpoena bears "the burden of establishing that the requested documents and records are utterly irrelevant" (Ledonne v. Orsid Realty Corp., 83 AD3d 598 (1st Dept. 2011)).

In our view, the First and Fourth Departments are correct, and the statute should be amended in order to make clear that no statutory barrier prevents disclosure of all matter "material and necessary" to an action, whether possessed by a party or a non-party. We believe that the fact that information held by a non-party may also be within the knowledge of a party should not, in and of itself, be a basis for precluding discovery of that non-party. A party's right to discovery of all the material and necessary facts, and its right to seek confirmation, or to test the veracity of, a party's version of the facts should be liberally construed.

Of course, in any individual instance, the court retains the discretionary authority to "make a protective order denying, limiting, conditioning or regulating the use of any discosure device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the courts" (CPLR 3103(a)). Moreover, the non-party will not have to bear the expense of any production. CPLR 3122(d) provides, in relevant part, that "the reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery."

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.

2012 Legislative History: OCA 2012-59 Senate 6651 (Bonacic) (Rules)