Discovery Disputes

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 225-242

Chapter 31

DISCOVERY DISPUTES

QUICK VIEW

Scope of Chapter: General discovery motion proceedings, and special types of motions generally used in dis-

covery disputes, such as motions to compel discovery, motions for sanctions, and motions for protection from

disclosure.

Strategies and Tactics:

• Prepare motions and supporting materials carefully so that a busy judge quickly understands why relief

should be granted or denied.

• Observe the formalities of motion practice to avoid delay and extraneous arguments about procedure.

When making a motion, consider whether the subject of the motion is crucial to your case. If not, see if

you can work out the dispute with your adversary without making a motion.

Statutes and Rules: Disclosure motions are governed by CPLR 3103 (protective orders), 3124 (failure to

disclose, motion to compel), 3125 (place where motion to compel disclosure is made), and 3126 (penalties for

refusal to comply with order or to disclose).

Related Topics: Motion Practice, Ch 15; Discovery in General, Ch 24; Privileges, Ch 25; Inspection of

Documents, Ch 26; Depositions, Ch 27; Physical and Mental Exams, Ch 28; Bills of Particulars and

Interrogatories, Ch 29; Notices to Admit, Ch 30.

Forms: See digital access for the following forms:

• Form 31:10, Notice of Motion for Discovery Sanctions.

• Form 31:20, Attorney Affirmation for Discovery Sanctions (short form).

• Form 31:30, Attorney Affirmation for Discovery Sanctions (long form).

• Form 31:40, Party’s Affidavit for Discovery Sanctions.

• Form 31:50, Notice of Cross Motion.

• Form 31:60, Order Granting Discovery Sanctions.

TABLE OF CONTENTS

I. General Requirements and Procedure

A. Before a Motion

1. NEGOTIATION STRATEGY

§31:01 Overview

§31:02 Agree on a Plan

§31:03 Confirm Disputes in Writing

§31:04 Meet and Confer Requirements

NEW YORK CIVIL PRACTICE BEFORE TRIAL 31-2

2. DISCOVERY CONFERENCES

§31:10 Request a Preliminary Conference

§31:11 Purpose of the Conference

§31:12 Conference Procedure and Order

§31:13 Limitations on Preliminary Conference Orders

B. Making a Motion

§31:20 Motion Options

§31:21 Motion Papers

§31:22 Affidavit of Good Faith Conference

§31:23 Service and Filing

§31:24 Response to Motion

§31:25 Return Date and Determination

II. Motions Affecting Disclosure Time Limits

§31:30 Restrict the Time for Completing Disclosure

§31:31 Modify PCO to Extend Disclosure Deadlines

§31:32 Extend CPLR Discovery Time Limits

§31:33 Shorten Time to Respond to Disclosure Demands

III. Motion for Supervision of Disclosure

§31:40 Motion Procedures

§31:41 When Is Supervision Warranted?

§31:42 Selecting a Referee

§31:43 Referee’s Powers

§31:44 Review of the Referee’s Orders

§31:45 Payment of the Referee’s Fees

IV. Motions to Compel Disclosure

A. Pre-Action Disclosure

§31:50 Standards for Pre-Action Disclosure

§31:51 Must Show that Cause of Action Already Exists

§31:52 Motion May Be Made Ex Parte

§31:53 When Is Pre-Action Disclosure Permitted?

§31:54 To Aid in Preparing the Complaint

§31:55 To Preserve Evidence

§31:56 When Is Pre-Action Disclosure Denied?

B. Pre-Trial Disclosure

§31:70 Burden Is on Party Seeking Disclosure

§31:71 What if Objections Are Not Timely?

§31:72 Motion Procedures

§31:73 Miscellaneous Orders for Disclosure