New York Civil Practice
Law & Rules
NYCPLR Subpoenas
NYCPLR Article 31
DISCLOSURE
3101. Scope of disclosure.
(a) Generally.
(b) Privileged matter.
(c) Attorney`s work product.
(d) Trial preparation.
(e) Party`s statement.
(f) Contents of insurance agreement.
(g) Accident reports.
(h) Amendment or supplementation of responses.
3102. Method of obtaining disclosure.
(a) Disclosure devices.
(b) Stipulation or notice normal method.
(c) Before action commenced.
(d) After trial commenced.
(e) Action pending in another jurisdiction.
(f) Action to which state is party.
3103. Protective orders.
(a) Prevention of abuse.
(b) Suspension of disclosure pending application for
protective order.
(c) Suppression of information improperly obtained.
3104. Supervision of disclosure.
(a) Motion for, and extent of, supervision of
disclosure.
(b) Selection of referee.
(c) Powers of referee; motions referred to person
supervising disclosure.
(d) Review of order of referee.
(e) Payment of expenses of referee.
3105. Notice to party in default.
3106. Priority of depositions; witnesses; prisoners;
designation of deponent.
(a) Normal priority.
(b) Witnesses.
(c) Prisoners.
(d) Designation of deponent.
3107. Notice of taking oral questions.
3108. Written questions; when permitted.
3109. Notice of taking deposition on written questions.
(a) Notice of taking; service of questions and
cross- questions.
(b) Officer asking written questions.
3110. Where the deposition is to be taken within the state.
3111. Production of things at the examination.
3112. Errors in notice for taking depositions.
3113. Conduct of the examination.
(a) Persons before whom depositions may be taken.
(b) Oath of witness; recording of testimony;
objections; continuous examination; written
questions read by examining officer.
(c) Examination and cross-examination.
3114. Examination of witness who does not understand the
English language.
3115. Objections to qualification of person taking
deposition; competency; questions and answers.
(a) Objection when deposition offered in evidence.
(b) Errors which might be obviated if made known
promptly.
(c) Disqualification of person taking deposition.
(d) Competency of witnesses or admissibility of
testimony.
(e) Form of written questions.
3116. Signing deposition; physical preparation; copies.
(a) Signing.
(b) Certification and filing by officer.
(c) Exhibits.
(d) Expenses of taking.
(e) Errors of officer or person transcribing.
3117. Use of depositions.
(a) Impeachment of witnesses; parties; unavailable
witness.
(b) Use of part of deposition.
(c) Substitution of parties; prior actions.
(d) Effect of using deposition.
3118. Demand for address of party or of person who possessed
an assigned cause of action or defense.
3120. Discovery and production of documents and things for
inspection, testing, copying or photographing.
(a) As against party.
(b) As against non-party.
3121. Physical or mental examination.
(a) Notice of examination.
(b) Copy of report.
3122. Objection to disclosure, inspection or examination;
compliance.
3122-a. Certification of business records.
3123. Admissions as to matters of fact, papers, documents
and photographs.
(a) Notice to admit; admission unless denied or
denial excused.
(b) Effect of admission.
(c) Penalty for unreasonable denial.
3124. Failure to disclose; motion to compel disclosure.
3125. Place where motion to compel disclosure made.
3126. Penalties for refusal to comply with order or to
disclose.
3130. Use of interrogatories.
3131. Scope of interrogatories.
3132. Service of interrogatories.
3133. Service of answers or objections to interrogatories.
(a) Service of an answer or objection.
(b) Form of answers and objections to
interrogatories.
(c) Amended answers.
3140. Disclosure of appraisals in proceedings for
condemnation, appropriation or review of tax
assessments.
S 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.
S 3102. Method of obtaining disclosure. (a) Disclosure devices.
Information is obtainable by one or more of the following disclosure
devices: depositions upon oral questions or without the state upon
written questions, interrogatories, demands for addresses, discovery and
inspection of documents or property, physical and mental examinations of
persons, and requests for admission.
(b) Stipulation or notice normal method. Unless otherwise provided by
the civil practice law and rules or by the court, disclosure shall be
obtained by stipulation or on notice without leave of the court.
(c) Before action commenced. Before an action is commenced, disclosure
to aid in bringing an action, to preserve information or to aid in
arbitration, may be obtained, but only by court order. The court may
appoint a referee to take testimony.
(d) After trial commenced. Except as provided in section 5223, during
and after trial, disclosure may be obtained only by order of the trial
court on notice.
(e) Action pending in another jurisdiction. When under any mandate,
writ or commission issued out of any court of record in any other state,
territory, district or foreign jurisdiction, or whenever upon notice or
agreement, it is required to take the testimony of a witness in the
state, he may be compelled to appear and testify in the same manner and
by the same process as may be employed for the purpose of taking
testimony in actions pending in the state. The supreme court or a county
court shall make any appropriate order in aid of taking such a
deposition.
(f) Action to which state is party. In an action in which the state is
properly a party, whether as plaintiff, defendant or otherwise,
disclosure by the state shall be available as if the state were a
private person.
S 3103. Protective orders. (a) Prevention of abuse. The court may at
any time on its own initiative, or on motion of any party or of any
person from whom discovery is sought, make a protective order denying,
limiting, conditioning or regulating the use of any disclosure device.
Such order shall be designed to prevent unreasonable annoyance, expense,
embarrassment, disadvantage, or other prejudice to any person or the
courts.
(b) Suspension of disclosure pending application for protective order.
Service of a notice of motion for a protective order shall suspend
disclosure of the particular matter in dispute.
(c) Suppression of information improperly obtained. If any disclosure
under this article has been improperly or irregularly obtained so that a
substantial right of a party is prejudiced, the court, on motion, may
make an appropriate order, including an order that the information be
suppressed.
S 3104. Supervision of disclosure. (a) Motion for, and extent of,
supervision of disclosure. Upon the motion of any party or witness on
notice to all parties or on its own initiative without notice, the court
in which an action is pending may by one of its judges or a referee
supervise all or part of any disclosure procedure.
(b) Selection of referee. A judicial hearing officer may be designated
as a referee under this section, or the court may permit all of the
parties in an action to stipulate that a named attorney may act as
referee. In such latter event, the stipulation shall provide for payment
of his fees which shall, unless otherwise agreed, be taxed as
disbursements.
(c) Powers of referee; motions referred to person supervising
disclosure. A referee under this section shall have all the powers of
the court under this article except the power to relieve himself of his
duties, to appoint a successor, or to adjudge any person guilty of
contempt. All motions or applications made under this article shall be
returnable before the judge or referee, designated under this section
and after disposition, if requested by any party, his order shall be
filed in the office of the clerk.
(d) Review of order of referee. Any party or witness may apply for
review of an order made under this section by a referee. The application
shall be by motion made in the court in which the action is pending
within five days after the order is made. Service of a notice of motion
for review shall suspend disclosure of the particular matter in dispute.
If the question raised by the motion may affect the rights of a witness,
notice shall be served on him personally or by mail at his last known
address. It shall set forth succinctly the order complained of, the
reason it is objectionable and the relief demanded.
(e) Payment of expenses of referee. Except where a judicial hearing
officer has been designated a referee hereunder, the court may make an
appropriate order for the payment of the reasonable expenses of the
referee.
Rule 3105. Notice to party in default. When a party is in default for
failure to appear, he shall not be entitled to notice or service of any
copy required under this article.
Rule 3106. Priority of depositions; witnesses; prisoners; designation
of deponent. (a) Normal priority. After an action is commenced, any
party may take the testimony of any person by deposition upon oral or
written questions. Leave of the court, granted on motion, shall be
obtained if notice of the taking of the deposition of a party is served
by the plaintiff before that party`s time for serving a responsive
pleading has expired.
(b) Witnesses. Where the person to be examined is not a party or a
person who at the time of taking the deposition is an officer, director,
member or employee of a party, he shall be served with a subpoena.
Unless the court orders otherwise, on motion with or without notice,
such subpoena shall be served at least twenty days before the
examination. Where a motion for a protective order against such an
examination is made, the witness shall be notified by the moving party
that the examination is stayed.
(c) Prisoners. The deposition of a person confined under legal process
may be taken only by leave of the court.
(d) Designation of deponent. A party desiring to take the deposition
of a particular officer, director, member or employee of a person shall
include in the notice or subpoena served upon such person the identity,
description or title of such individual. Such person shall produce the
individual so designated unless they shall have, no later than ten days
prior to the scheduled deposition, notified the requesting party that
another individual would instead be produced and the identity,
description or title of such individual is specified. If timely
notification has been so given, such other individual shall instead be
produced.
Rule 3107. Notice of taking oral questions. A party desiring to take
the deposition of any person upon oral examination shall give to each
party twenty days` notice, unless the court orders otherwise. The notice
shall be in writing, stating the time and place for taking the
deposition, the name and address of each person to be examined, if
known, and, if any name is not known, a general description sufficient
to identify him or the particular class or group to which he belongs.
The notice need not enumerate the matters upon which the person is to be
examined. A party to be examined pursuant to notice served by another
party may serve notice of at least ten days for the examination of any
other party, his agent or employee, such examination to be noticed for
and to follow at the same time and place.
Rule 3108. Written questions; when permitted. A deposition may be
taken on written questions when the examining party and the deponent so
stipulate or when the testimony is to be taken without the state. A
commission or letters rogatory may be issued where necessary or
convenient for the taking of a deposition outside of the state.
Rule 3109. Notice of taking deposition on written questions. (a)
Notice of taking; service of questions and cross-questions. A party
desiring to take the deposition of any person upon written questions
shall serve such questions upon each party together with a notice
stating the name and address of the person to be examined, if known,
and, if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs, and
the name or descriptive title and address of the officer before whom the
deposition is to be taken. Within fifteen days thereafter a party so
served may serve written cross-questions upon each party. Within seven
days thereafter the original party may serve written redirect questions
upon each party. Within five days after being served with written
redirect questions, a party may serve written recross-questions upon
each party.
(b) Officer asking written questions. A copy of the notice and copies
of all written questions served shall be delivered by the party taking
the deposition to the officer designated in the notice. The officer
shall proceed promptly to take the testimony of the witness in response
to the written questions and to prepare the deposition.
Rule 3110. Where the deposition is to be taken within the state. A
deposition within the state on notice shall be taken:
1. when the person to be examined is a party or an officer, director,
member or employee of a party, within the county in which he resides or
has an office for the regular transaction of business in person or where
the action is pending; or
2. when any other person to be examined is a resident, within the
county in which he resides, is regularly employed or has an office for
the regular transaction of business in person, or if he is not a
resident, within the county in which he is served, is regularly employed
or has an office for the regular transaction of business in person; or
3. when the party to be examined is a public corporation or any
officer, agent or employee thereof, within the county in which the
action is pending; the place of such examination shall be the office of
any of the attorneys for such a public corporation or any officer, agent
or authorized employee thereof unless the parties stipulate otherwise.
For the purpose of this rule New York city shall be considered one
county.
Rule 3111. Production of things at the examination. The notice or
subpoena may require the production of books, papers and other things in
the possession, custody or control of the person to be examined to be
marked as exhibits, and used on the examination. The reasonable
production expenses of a non-party witness shall be defrayed by the
party seeking discovery.
Rule 3112. Errors in notice for taking depositions. All errors and
irregularities in the notice for taking a deposition are waived unless
at least three days before the time for taking the deposition written
objection is served upon the party giving the notice.
Rule 3113. Conduct of the examination. (a) Persons before whom
depositions may be taken. Depositions may be taken before any of the
following persons except an attorney, or employee of an attorney, for a
party or prospective party and except a person who would be disqualified
to act as a juror because of interest in the event or consanguinity or
affinity to a party:
1. within the state, a person authorized by the laws of the state to
administer oaths;
2. without the state but within the United States or within a
territory or possession subject to the jurisdiction of the United
States, a person authorized to take acknowledgments of deeds outside of
the state by the real property law of the state or to administer oaths
by the laws of the United States or of the place where the deposition is
taken; and
3. in a foreign country, any diplomatic or consular agent or
representative of the United States, appointed or accredited to, and
residing within, the country, or a person appointed by commission or
under letters rogatory, or an officer of the armed forces authorized to
take the acknowledgment of deeds.
Officers may be designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed "To the
Appropriate Authority in (here name the state or country)."
(b) Oath of witness; recording of testimony; objections; continuous
examination; written questions read by examining officer. The officer
before whom the deposition is to be taken shall put the witness on oath
and shall personally, or by someone acting under his direction, record
the testimony. The testimony shall be recorded by stenographic or other
means, subject to such rules as may be adopted by the appellate division
in the department where the action is pending. All objections made at
the time of the examination to the qualifications of the officer taking
the deposition or the person recording it, or to the manner of taking
it, or to the testimony presented, or to the conduct of any person, and
any other objection to the proceedings, shall be noted by the officer
upon the deposition and the deposition shall proceed subject to the
right of a person to apply for a protective order. The deposition shall
be taken continuously and without unreasonable adjournment, unless the
court otherwise orders or the witness and parties present otherwise
agree. In lieu of participating in an oral examination, any party
served with notice of taking a deposition may transmit written questions
to the officer, who shall propound them to the witness and record the
answers.
(c) Examination and cross-examination. Examination and
cross-examination of deponents shall proceed as permitted in the trial
of actions in open court. When the deposition of a party is taken at
the instance of an adverse party, the deponent may be cross-examined by
his own attorney. Cross-examination need not be limited to the subject
matter of the examination in chief.
Rule 3114. Examination of witness who does not understand the English
language. If the witness to be examined does not understand the English
language, the examining party must, at his own expense, provide a
translation of all questions and answers. Where the court settles
questions, it may settle them in the foreign language and in English. It
may use the services of one or more experts whose compensation shall be
paid by the party seeking the examination and may be taxed as a
disbursement.
Rule 3115. Objections to qualification of person taking deposition;
competency; questions and answers. (a) Objection when deposition
offered in evidence. Subject to the other provisions of this rule,
objection may be made at the trial or hearing to receiving in evidence
any deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and
testifying.
(b) Errors which might be obviated if made known promptly. Errors and
irregularities occurring at the oral examination in the manner of taking
the deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of persons, and errors of any kind which
might be obviated or removed if objection were promptly presented, are
waived unless reasonable objection thereto is made at the taking of the
deposition.
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Article 31 Continued . . .
(c) Disqualification of person taking deposition. Objection to the
taking of a deposition because of disqualification of the person by whom
it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification becomes
known or could be discovered with reasonable diligence.
(d) Competency of witnesses or admissibility of testimony. Objections
to the competency of a witness or to the admissibility of testimony are
not waived by failure to make them before or during the taking of the
deposition, unless the ground of the objection is one which might have
been obviated or removed if objection had been made at that time.
(e) Form of written questions. Objections to the form of written
questions are waived unless served in writing upon the party propounding
the questions within the time allowed for serving succeeding questions
or within three days after service.
Rule 3116. Signing deposition; physical preparation; copies. (a)
Signing. The deposition shall be submitted to the witness for
examination and shall be read to or by him or her, and any changes in
form or substance which the witness desires to make shall be entered at
the end of the deposition with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the
witness before any officer authorized to administer an oath. If the
witness fails to sign and return the deposition within sixty days, it
may be used as fully as though signed. No changes to the transcript may
be made by the witness more than sixty days after submission to the
witness for examination.
(b) Certification and filing by officer. The officer before whom the
deposition was taken shall certify on the deposition that the witness
was duly sworn by him and that the deposition is a true record of the
testimony given by the witness. He shall list all appearances by the
parties and attorneys. If the deposition was taken on written questions,
he shall attach to it the copy of the notice and written questions
received by him. He shall then securely seal the deposition in an
envelope endorsed with the title of the action and the index number of
the action, if one has been assigned, and marked "Deposition of (here
insert name of witness)" and shall promptly file it with, or send it by
registered or certified mail to the clerk of the court where the case is
to be tried. The deposition shall always be open to the inspection of
the parties, each of whom is entitled to make copies thereof. If a copy
of the deposition is furnished to each party or if the parties stipulate
to waive filing, the officer need not file the original but may deliver
it to the party taking the deposition.
(c) Exhibits. Documentary evidence exhibited before the officer or
exhibits marked for identification during the examination of the witness
shall be annexed to and returned with the deposition. However, if
requested by the party producing documentary evidence or on exhibit, the
officer shall mark it for identification as an exhibit in the case, give
each party an opportunity to copy or inspect it, and return it to the
party offering it, and it may then be used in the same manner as if
annexed to and returned with the deposition.
(d) Expenses of taking. Unless the court orders otherwise, the party
taking the deposition shall bear the expense thereof.
(e) Errors of officer or person transcribing. Errors and
irregularities of the officer or the person transcribing the deposition
are waived unless a motion to suppress the deposition or some part
thereof is made with reasonable promptness after such defect is, or with
due diligence might have been, ascertained.
Rule 3117. Use of depositions. (a) Impeachment of witnesses; parties;
unavailable witness. At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as
admissible under the rules of evidence, may be used in accordance with
any of the following provisions:
1. any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness;
2. the deposition testimony of a party or of any person who was a
party when the testimony was given or of any person who at the time the
testimony was given was an officer, director, member, employee or
managing or authorized agent of a party, may be used for any purpose by
any party who was adversely interested when the deposition testimony was
given or who is adversely interested when the deposition testimony is
offered in evidence;
3. the deposition of any person may be used by any party for any
purpose against any other party who was present or represented at the
taking of the deposition or who had the notice required under these
rules, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles
from the place of trial or is out of the state, unless it appears that
the absence of the witness was procured by the party offering the
deposition; or
(iii) that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or (iv) that the party offering
the deposition has been unable to procure the attendance of the witness
by diligent efforts; or (v) upon motion or notice, that such exceptional
circumstances exist as to make its use desirable, in the interest of
justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court;
4. the deposition of a person authorized to practice medicine may be
used by any party without the necessity of showing unavailability or
special circumstances, subject to the right of any party to move
pursuant to section 3103 to prevent abuse.
(b) Use of part of deposition. If only part of a deposition is read at
the trial by a party, any other party may read any other part of the
deposition which ought in fairness to be considered in connection with
the part read.
(c) Substitution of parties; prior actions. Substitution of parties
does not affect the right to use depositions previously taken. When an
action has been brought in any court of any state or of the United
States and another action involving the same subject matter is afterward
brought between the same parties or their representatives or successors
in interest all depositions taken in the former action may be used in
the latter as if taken therein.
(d) Effect of using deposition. A party shall not be deemed to make a
person his own witness for any purpose by taking his deposition. The
introduction in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the deponent
makes the deponent the witness of the party introducing the deposition,
but this shall not apply to the use of a deposition as described in
paragraph two of subdivision (a). At the trial, any party may rebut any
relevant evidence contained in a deposition, whether introduced by him
or by any other party.
Rule 3118. Demand for address of party or of person who possessed an
assigned cause of action or defense. A party may serve on any party a
written notice demanding a verified statement setting forth the post
office address and residence of the party, of any specified officer or
member of the party and of any person who possessed a cause of action or
defense asserted in the action which has been assigned. The demand shall
be complied with within ten days of its service.
* Rule 3120. Discovery and production of documents and things for
inspection, testing, copying or photographing.
(a) As against party:
1. After commencement of an action, any party may serve on any other
party notice:
(i) to produce and permit the party seeking discovery, or someone
acting on his or her behalf, to inspect, copy, test or photograph any
designated documents or any things which are in the possession, custody
or control of the party served; or
(ii) to permit entry upon designated land or other property in the
possession, custody or control of the party served for the purpose of
inspecting, measuring, surveying, sampling, testing, photographing or
recording by motion pictures or otherwise the property or any
specifically designated object or operation thereon.
2. The notice shall specify the time, which shall be not less than
twenty days after service of the notice, and the place and manner of
making the inspection, copy, test or photograph, or of the entry upon
the land or other property and, in the case of an inspection, copying,
testing or photographing, shall set forth the items to be inspected,
copied, tested or photographed by individual item or by category, and
shall describe each item and category with reasonable particularity.
(b) As against non-party. A person not a party may be directed by
order to do whatever a party may be directed to do under subdivision
(a). The motion for such order shall be on notice to all adverse
parties; the non-party shall be served with the notice of motion in the
same manner as a summons. The order shall contain, in addition to such
specifications as the notice is required to contain under paragraph two
of subdivision (a), provision for the defraying of the expenses of the
non-party.
* NB Effective until September 1, 2003
* Rule 3120. Discovery and production of documents and things for
inspection, testing, copying or photographing.
1. After commencement of an action, any party may serve on any other
party a notice or on any other person a subpoena duces tecum:
(i) to produce and permit the party seeking discovery, or someone
acting on his or her behalf, to inspect, copy, test or photograph any
designated documents or any things which are in the possession, custody
or control of the party or person served; or
(ii) to permit entry upon designated land or other property in the
possession, custody or control of the party or person served for the
purpose of inspecting, measuring, surveying, sampling, testing,
photographing or recording by motion pictures or otherwise the property
or any specifically designated object or operation thereon.
2. The notice or subpoena duces tecum shall specify the time, which
shall be not less than twenty days after service of the notice or
subpoena, and the place and manner of making the inspection, copy, test
or photograph, or of the entry upon the land or other property and, in
the case of an inspection, copying, testing or photographing, shall set
forth the items to be inspected, copied, tested or photographed by
individual item or by category, and shall describe each item and
category with reasonable particularity.
3. The party issuing a subpoena duces tecum as provided hereinabove
shall at the same time serve a copy of the subpoena upon all other
parties and, within five days of compliance therewith, in whole or in
part, give to each party notice that the items produced in response
thereto are available for inspection and copying, specifying the time
and place thereof.
4. Nothing contained in this section shall be construed to change the
requirement of section 2307 that a subpoena duces tecum to be served
upon a library or a department or bureau of a municipal corporation, or
of the state, or an officer thereof, requires a motion made on notice to
the library, department, bureau or officer, and the adverse party, to a
justice of the supreme court or a judge of the court in which the action
is triable.
* NB Effective September 1, 2003
S 3121. Physical or mental examination. (a) Notice of examination.
After commencement of an action in which the mental or physical
condition or the blood relationship of a party, or of an agent, employee
or person in the custody or under the legal control of a party, is in
controversy, any party may serve notice on another party to submit to a
physical, mental or blood examination by a designated physician, or to
produce for such examination his agent, employee or the person in his
custody or under his legal control. The notice may require duly executed
and acknowledged written authorizations permitting all parties to
obtain, and make copies of, the records of specified hospitals relating
to such mental or physical condition or blood relationship; where a
party obtains a copy of a hospital record as a result of the
authorization of another party, he shall deliver a duplicate of the copy
to such party. A copy of the notice shall be served on the person to be
examined. It shall specify the time, which shall be not less than twenty
days after service of the notice, and the conditions and scope of the
examination.
(b) Copy of report. A copy of a detailed written report of the
examining physician setting out his findings and conclusions shall be
delivered by the party seeking the examination to any party requesting
to exchange therefor a copy of each report in his control of an
examination made with respect to the mental or physical condition in
controversy.
* Rule 3122. Objection to disclosure, inspection or examination;
compliance. (a) Within twenty days of service of a notice under rule
3120 or section 3121, the party to whom the notice is directed, if that
party objects to the disclosure, inspection or examination, shall serve
a response which shall state with reasonable particularity the reasons
for each objection. If objection is made to part of an item or category,
the part shall be specified. The party seeking disclosure under rule
3120 or section 3121 may move for an order under rule 3124 with respect
to any objection to, or other failure to respond to or permit inspection
as requested by, the notice or any part thereof.
(b) Whenever a person is required pursuant to such a notice or order
to produce documents for inspection, and where such person withholds one
or more documents that appear to be within the category of the documents
required by the notice or order to be produced, such person shall give
notice to the party seeking the production and inspection of the
documents that one or more such documents are being withheld. This
notice shall indicate the legal ground for withholding each such
document, and shall provide the following information as to each such
document, unless the party withholding the document states that
divulgence of such information would cause disclosure of the allegedly
privileged information: (1) the type of document; (2) the general
subject matter of the document; (3) the date of the document; and (4)
such other information as is sufficient to identify the document for a
subpoena duces tecum.
(c) Whenever a person is required pursuant to such notice or order to
produce documents for inspection, that person shall produce them as they
are kept in the regular course of business or shall organize and label
them to correspond to the categories in the request.
* NB Effective until September 1, 2003
* Rule 3122. Objection to disclosure, inspection or examination;
compliance. (a) Within twenty days of service of a notice or subpoena
duces tecum under rule 3120 or section 3121, the party or person to whom
the notice or subpoena duces tecum is directed, if that party or person
objects to the disclosure, inspection or examination, shall serve a
response which shall state with reasonable particularity the reasons for
each objection. If objection is made to part of an item or category, the
part shall be specified. A medical provider served with a subpoena duces
tecum requesting the production of a patient`s medical records pursuant
to this rule need not respond or object to the subpoena if the subpoena
is not accompanied by a written authorization by the patient. Any
subpoena served upon a medical provider requesting the medical records
of a patient shall state in conspicuous bold-faced type that the records
shall not be provided unless the subpoena is accompanied by a written
authorization by the patient. The party seeking disclosure under rule
3120 or section 3121 may move for an order under rule 3124 or section
2308 with respect to any objection to, or other failure to respond to or
permit inspection as requested by, the notice or subpoena duces tecum,
respectively, or any part thereof.
(b) Whenever a person is required pursuant to such a notice, subpoena
duces tecum or order to produce documents for inspection, and where such
person withholds one or more documents that appear to be within the
category of the documents required by the notice, subpoena duces tecum
or order to be produced, such person shall give notice to the party
seeking the production and inspection of the documents that one or more
such documents are being withheld. This notice shall indicate the legal
ground for withholding each such document, and shall provide the
following information as to each such document, unless the party
withholding the document states that divulgence of such information
would cause disclosure of the allegedly privileged information: (1) the
type of document; (2) the general subject matter of the document; (3)
the date of the document; and (4) such other information as is
sufficient to identify the document for a subpoena duces tecum.
(c) Whenever a person is required pursuant to such notice or order to
produce documents for inspection, that person shall produce them as they
are kept in the regular course of business or shall organize and label
them to correspond to the categories in the request.
(d) Unless the subpoena duces tecum directs the production of original
documents for inspection and copying at the place where such items are
usually maintained, it shall be sufficient for the custodian or other
qualified person to deliver complete and accurate copies of the items to
be produced. The reasonable production expenses of a non-party witness
shall be defrayed by the party seeking discovery.
* NB Effective September 1, 2003
* Rule 3122-a. Certification of business records. (a) Business records
produced pursuant to a subpoena duces tecum under rule 3120 shall be
accompanied by a certification, sworn in the form of an affidavit and
subscribed by the custodian or other qualified witness charged with
responsibility of maintaining the records, stating in substance each of
the following:
1. The affiant is the duly authorized custodian or other qualified
witness and has authority to make the certification;
2. To the best of the affiant`s knowledge, after reasonable inquiry,
the records or copies thereof are accurate versions of the documents
described in the subpoena duces tecum that are in the possession,
custody, or control of the person receiving the subpoena;
3. To the best of the affiant`s knowledge, after reasonable inquiry,
the records or copies produced represent all the documents described in
the subpoena duces tecum, or if they do not represent a complete set of
the documents subpoenaed, an explanation of which documents are missing
and a reason for their absence is provided; and
4. The records or copies produced were made by the personnel or staff
of the business, or persons acting under their control, in the regular
course of business, at the time of the act, transaction, occurrence or
event recorded therein, or within a reasonable time thereafter, and that
it was the regular course of business to make such records.
(b) A certification made in compliance with subdivision (a) is
admissible as to the matters set forth therein and as to such matters
shall be presumed true. When more than one person has knowledge of the
facts, more than one certification may be made.
(c) A party intending to offer at a trial or hearing business records
authenticated by certification subscribed pursuant to this rule shall,
at least thirty days before the trial or hearing, give notice of such
intent and specify the place where such records may be inspected at
reasonable times. No later than ten days before the trial or hearing, a
party upon whom such notice is served may object to the offer of
business records by certification stating the grounds for the objection.
Such objection may be asserted in any instance and shall not be subject
to imposition of any penalty or sanction. Unless objection is made
pursuant to this subdivision, or is made at trial based upon evidence
which could not have been discovered by the exercise of due diligence
prior to the time for objection otherwise required by this subdivision,
business records certified in accordance with this rule shall be deemed
to have satisfied the requirements of subdivision (a) of rule 4518.
Notwithstanding the issuance of such notice or objection to same, a
party may subpoena the custodian to appear and testify and require the
production of original business records at the trial or hearing.
* NB Effective September 1, 2003
S 3123. Admissions as to matters of fact, papers, documents and
photographs. (a) Notice to admit; admission unless denied or denial
excused. At any time after service of the answer or after the expiration
of twenty days from service of the summons, whichever is sooner, and not
later than twenty days before the trial, a party may serve upon any
other party a written request for admission by the latter of the
genuineness of any papers or documents, or the correctness or fairness
of representation of any photographs, described in and served with the
request, or of the truth of any matters of fact set forth in the
request, as to which the party requesting the admission reasonably
believes there can be no substantial dispute at the trial and which are
within the knowledge of such other party or can be ascertained by him
upon reasonable inquiry. Copies of the papers, documents or photographs
shall be served with the request unless copies have already been
furnished. Each of the matters of which an admission is requested shall
be deemed admitted unless within twenty days after service thereof or
within such further time as the court may allow, the party to whom the
request is directed serves upon the party requesting the admission a
sworn statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters. If the matters of
which an admission is requested cannot be fairly admitted without some
material qualification or explanation, or if the matters constitute a
trade secret or such party would be privileged or disqualified from
testifying as a witness concerning them, such party may, in lieu of a
denial or statement, serve a sworn statement setting forth in detail his
claim and, if the claim is that the matters cannot be fairly admitted
without some material qualification or explanation, admitting the
matters with such qualification or explanation.
(b) Effect of admission. Any admission made, or deemed to be made, by
a party pursuant to a request made under this rule is for the purpose of
the pending action only and does not constitute an admission by him for
any other purpose nor may it be used against him in any other
proceeding; and the court, at any time, may allow a party to amend or
withdraw any admission on such terms as may be just. Any admission shall
be subject to all pertinent objections to admissibility which may be
interposed at the trial.
(c) Penalty for unreasonable denial. If a party, after being served
with a request under subdivision (a) does not admit and if the party
requesting the admission thereafter proves the genuineness of any such
paper or document, or the correctness or fairness of representation of
any such photograph, or the truth of any such matter of fact, he may
move at or immediately following the trial for an order requiring the
other party to pay him the reasonable expenses incurred in making such
proof, including reasonable attorney`s fees. Unless the court finds that
there were good reasons for the denial or the refusal otherwise to admit
or that the admissions sought were of no substantial importance, the
order shall be made irrespective of the result of the action. Upon a
trial by jury, the motion for such an order shall be determined by the
court outside the presence of the jury.
Rule 3124. Failure to disclose; motion to compel disclosure. If a
person fails to respond to or comply with any request, notice,
interrogatory, demand, question or order under this article, except a
notice to admit under section 3123, the party seeking disclosure may
move to compel compliance or a response.
Rule 3125. Place where motion to compel disclosure made. Unless
otherwise provided by rule of the chief administrator of the courts, the
county in which a deposition is being taken or an examination or
inspection is being sought may be treated by the moving party as the
county in which the action is pending for purposes of section 3124.
S 3126. Penalties for refusal to comply with order or to disclose. If
any party, or a person who at the time a deposition is taken or an
examination or inspection is made is an officer, director, member,
employee or agent of a party or otherwise under a party`s control,
refuses to obey an order for disclosure or wilfully fails to disclose
information which the court finds ought to have been disclosed pursuant
to this article, the court may make such orders with regard to the
failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall
be deemed resolved for purposes of the action in accordance with the
claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or
opposing designated claims or defenses, from producing in evidence
designated things or items of testimony, or from introducing any
evidence of the physical, mental or blood condition sought to be
determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or any part thereof, or rendering a judgment by default against the
disobedient party.
S 3130. Use of interrogatories. 1. Except as otherwise provided
herein, after commencement of an action, any party may serve upon any
other party written interrogatories. Except in a matrimonial action, a
party may not serve written interrogatories on another party and also
demand a bill of particulars of the same party pursuant to section 3041.
In the case of an action to recover damages for personal injury, injury
to property or wrongful death predicated solely on a cause or causes of
action for negligence, a party shall not be permitted to serve
interrogatories on and conduct a deposition of the same party pursuant
to rule 3107 without leave of court.
2. After the commencement of a matrimonial action or proceeding, upon
motion brought by either party, upon such notice to the other party and
to the non-party from whom financial disclosure is sought, and given in
such manner as the court shall direct, the court may order a non-party
to respond under oath to written interrogatories limited to furnishing
financial information concerning a party, and further provided such
information is both reasonable and necessary in the prosecution or the
defense of such matrimonial action or proceeding.
S 3131. Scope of interrogatories. Interrogatories may relate to any
matters embraced in the disclosure requirement of section 3101 and the
answers may be used to the same extent as the depositions of a party.
Interrogatories may require copies of such papers, documents or
photographs as are relevant to the answers required, unless opportunity
for this examination and copying be afforded.
Rule 3132. Service of interrogatories. After commencement of an
action, any party may serve written interrogatories upon any other
party. Interrogatories may not be served upon a defendant before that
defendant`s time for serving a responsive pleading has expired, except
by leave of court granted with or without notice. A copy of the
interrogatories and of any order made under this rule shall be served on
each party.
Rule 3133. Service of answers or objections to interrogatories. (a)
Service of an answer or objection. Within twenty days after service of
interrogatories, the party upon whom they are served shall serve upon
each of the parties a copy of the answer to each interrogatory, except
one to which the party objects, in which event the reasons for the
objection shall be stated with reasonable particularity.
(b) Form of answers and objections to interrogatories.
Interrogatories shall be answered in writing under oath by the party
served, if an individual, or, if the party served is a corporation, a
partnership or a sole proprietorship, by an officer, director, member,
agent or employee having the information. Each question shall be
answered separately and fully, and each answer shall be preceded by the
question to which it responds.
(c) Amended answers. Except with respect to amendment or
supplementation of responses pursuant to subdivision (h) of section
3101, answers to interrogatories may be amended or supplemented only by
order of the court upon motion.
S 3140. Disclosure of appraisals in proceedings for condemnation,
appropriation or review of tax assessments. Notwithstanding the
provisions of subdivisions (c) and (d) of section 3101, the chief
administrator of the courts shall adopt rules governing the exchange of
appraisal reports intended for use at the trial in proceedings for
condemnation, appropriation or review of tax assessments.