Chapter 9 Discovery/Pretrial Issues

• Jurisdiction: New York

CHAPTER NINE DISCOVERY/PRETRIAL ISSUES William I. Sussman, Esq.*

This chapter provides an overview of some significant discovery and related pretrial issues that arise in products liability cases in New York, and discusses the relevant statutory and decisional law in this ever-evolving field ¹⁵⁷⁰

I. INTRODUCTORY PRINCIPLES

To begin, a brief summary of the familiar discovery devices available under article 31 of the N.Y. Civil Practice Law and Rules (CPLR) is in order. Subject to the power of the courts to regulate discovery ¹⁵⁷¹ and subject to certain limits on expert discovery, such devices are discussed below

A. Deposition

After the commencement of an action, a party may take the deposition of “any person,” ¹⁵⁷² either on oral questions ¹⁵⁷³ or the far less common written questions ¹⁵⁷⁴ Defendants normally have priority ¹⁵⁷⁵ but only if they preserve that priority by serving their notices with their responsive pleadings. Venue of a deposition is governed by CPLR 3110. Under the 1984 amendment to CPLR 3106(d), a party seeking to depose a corporate designee may identify a specific person, but the corporation has the right to substitute someone else by giving notice to the requesting party, at least 10 days before the deposition, that someone else will be produced, together with that person’s “identity, description and title.” When a nonparty is noticed for deposition pursuant to CPLR 3106(b), the deposition notice must include a statement regarding the “circumstances or reasons” why it is sought. ¹⁵⁷⁶

A demand in a deposition notice may require production at the deposition of “books, papers and other things” in the possession, custody or control of the person to be examined. ¹⁵⁷⁷ As Siegel’s Practice Commentaries point out, CPLR 3111 “is an analogous but more limited device” than a CPLR 3120 notice to produce. Thus, judicious drafting may avoid unnecessary difficulties.

Under N.Y. Comp. Codes, Rules and Regs., title 22 §§ 221.1–221.3 (N.Y.C.R.R.), promulgated in 2006, certain deposition procedures are prescribed and others proscribed. Under § 221.1, objections at a deposition are limited; under its subdivision (a) no objections are to be interposed other than those that would otherwise be waived, while under its subdivision (b) “speaking objections” are forbidden, and if requested by the questioner the objecting counsel must specify the defect in form or other claimed deficiency in the question. Similarly, § 221.2 bars directions not to answer, except to preserve a privilege or right of confidentiality, or when a question is both plainly improper and would, if answered, cause significant prejudice to any person; any direction not to answer must be accompanied by a succinct and clear statement of its basis. Finally, under § 221.3, an attorney may not interrupt a deposition to communicate with the deponent unless all parties consent or the purpose of the communication is to see if a question should be answered under § 221.2; even in those circumstances, the reason for the communication must be succinctly and clearly put on the record. Case law under these Rules is sparse. ¹⁵⁷⁸

B. Discovery and Inspection Demand

Besides the deposition, another significant disclosure device in a products liability case is the CPLR 3120 discovery and inspection demand. A 1993 amendment to the statute permits a CPLR 3120 notice to describe the things sought “by individual item or by category” (emphasis added). The inclusion of the “category” designation should bring New York practice more into harmony with practice under Rule 34 of the Federal Rules of Civil Procedure (FRCP). Even so, the amended provision does not permit vaguely worded “fishing expedition[s].” ¹⁵⁷⁹ A 2003 amendment to CPLR 3120 authorizes nonparty document discovery by service of a subpoena duces tecum with copies to all parties, replacing the prior requirement of a motion on notice to obtain document discovery from nonparties. The nonparty may comply by producing copies of the documents requested (unless the subpoena directs production of originals for inspection and copying). The “reasonable production expenses” of the nonparty shall be defrayed by the subpoenaing party. A related 2003 CPLR amendment to 3122(a) relieves medical providers from responding to subpoenas duces tecum for a patient’s medical records unless such subpoenas are accompanied by written authorization by the patient. A related 1993 amendment to CPLR 3122(a) allows a party 20 days within which to serve objections, if they are stated “with reasonable particularity,” to a CPLR 3120 discovery and inspection demand, or to a CPLR 3121 request for a physical or mental examination. The demanding party may then move to compel under CPLR 3124. Civil Practice Law and Rules 3122(b), also a result of the 1993 amendment, requires that a party withholding a document called for by a notice, subpoena duces tecum, or order within CPLR 3122(a) must give notice of such withholding, along with a statement of the basis for so doing and sufficient data to identify the document for a subpoena duces tecum.

A CPLR 3121 notice to appear for a physical or mental examination is available whenever “mental or physical condition” is “in controversy.” “If the notice is challenged, the party seeking such an examination, as a preliminary burden, must demonstrate that the mental or physical condition of the party from whom discovery is sought is ‘in controversy.’ Only then may discovery proceed under the statute.” ¹⁵⁸⁰ The statute must be read in conjunction with § 202.17 of the Uniform Civil Rules for the Supreme and County Courts (Uniform Rules), ¹⁵⁸¹ which has detailed requirements as well. Further, the statute does not detract from the court’s more general discovery authority under CPLR 3101(a). ¹⁵⁸²

The notice to admit under CPLR 3123, although technically available in a products liability action, is often of little utility in view of the restricted function it is deemed to play. ¹⁵⁸³

C. Interrogatories

Interrogatories, governed by CPLR 3130, are useful in determining many factual matters, although they lack the live give-and-take of a deposition. In the rare products liability case predicated solely on negligence, interrogatories to and a CPLR 3107 deposition of the same party are barred, absent leave of court. ¹⁵⁸⁴ A defendant normally has priority in serving interrogatories. ¹⁵⁸⁵ The 1993 amendment to CPLR 3133 provides that objectionable interrogatories shall be objected to “with reasonable particularity,” after which the asking party may, if desirous of pressing the issue, move under CPLR 3124. The goal of the amendment is to encourage discussion between the parties before resorting to motions, but even under the amended version, the courts will sometimes grant motions for protective orders, striking oppressive interrogatories, without requiring a response first. ¹⁵⁸⁶

D. Demand for Bill of Particulars

A demand for a bill of particulars under CPLR 3041 is an option in a products liability case. However, a bill is not a discovery device; rather, it is intended to amplify the pleadings, limit the proof and prevent surprise at trial. It is not to be used to seek evidentiary material ¹⁵⁸⁷ and can only be used with respect to matters on which the party served has the burden of proof. ¹⁵⁸⁸ In a products liability action, a party may not be served both with interrogatories and a demand for a bill of particulars. ¹⁵⁸⁹

E. Application of Discovery Rules

1. Generally

The ground rules that govern New York discovery are well known. There must be “full disclosure of all evidence material and necessary in the prosecution or defense of an action.” ¹⁵⁹⁰ As explicated by the Court of Appeals in Allen v. Crowell-Collier Publishing Co ¹⁵⁹¹ the “material and necessary” standard is to be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” Thus, discovery provisions are to be given a broad and liberal construction. ¹⁵⁹²

The general rule of liberal discovery coexists with another ground rule, which is that the trial court has broad discretion in its supervision of pretrial procedure. Civil Practice Law and Rules 3103 codifies that discretion with respect to protective orders, and the discretion is broad indeed. It gives the court the power, at any time, whether on motion of a party (or any other person from whom disclosure is sought) or on its own motion, to make a protective order “denying, limiting, conditioning or regulating the use of any disclosure device.” ¹⁵⁹³ That is a potent power and is recognized as such by the appellate courts. ¹⁵⁹⁴

However, the Appellate Division has the same power as the supreme court to exercise discretion, ¹⁵⁹⁵ and it freely uses that power in the context of discovery disputes even as it acknowledges the supreme court’s discretion. ¹⁵⁹⁶ A clear example of the Appellate Division’s willingness to exercise its own discretion is found in cases involving discovery of “similar” matters. ¹⁵⁹⁷ In all instances, a party who loses a discovery dispute in the supreme court should bear in mind the Appellate Division’s own discretionary power, and should not simply assume that the trial court’s ruling is the last word.

The trial court’s power to supervise discovery is, if anything, enhanced by the Individual Assignment System (IAS), by which a justice is assigned to supervise an action throughout its pretrial phase. ¹⁵⁹⁸ This system allows the justice to develop a better overall “feel” for the action and its particular issues, thus leading to more informed judicial supervision. ¹⁵⁹⁹

The resolution of any particular discovery dispute turns, to a great degree, on the particular facts, and it is up to

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