Part XXVII Disclosure Motions Disclosure Motions

• Jurisdiction: New York

Part XXVII — Disclosure Motions

We resume our series on drafting. In this and the following issues, we’ll discuss disclosure motions and motions involving disclosure-like devices.

Disclosure is a process between you and your adversary to exchange information before you go to trial. Disclosure prevents surprise at trial, expedites cases, encourages settlement, and outs the truth.

Practitioners usually use the terms “disclosure” and “discovery” interchangeably. In New York courts, the proper term is “disclosure.” In federal court, its counterpart is called “discovery.” Because this column is for New York State practitioners, the Legal Writer uses “disclosure.”

Article 31 of the CPLR addresses disclosure. CPLR 3101 sets out what is discoverable.

You obtain disclosure by sending a notice to your adversary specifying what information you’re seeking. You may then agree with your adversary — by preparing and signing a stipulation — to exchange information by a date certain. If no agreement is forthcoming, you’ll need a court order to obtain disclosure. You’ll also need a court order to get disclosure (1) before commencing an action,¹⁰⁰⁰ (2) during or after trial,¹⁰⁰¹ (3) from a prisoner,¹⁰⁰² (4) after the note of issue and certification of readiness have been filed,¹⁰⁰³ or (5) in a special proceeding.¹⁰⁰⁴

The disclosure process should be amicable. Always try to work out disclosure disputes with your adversary.

If your adversary didn’t comply with a notice to admit, consult CPLR 3123. Notices to admit have their own built-in sanctions under CPLR 3123. The Legal Writer discussed the nuances to notices to admit in earlier columns.¹⁰⁰⁵

Familiarize yourself with Article 31 before asking the court to intervene: CPLR 3103 (motions for a protective order); CPLR 3124 (motions to compel disclosure); CPLR 3115 (motions to challenge the qualifications of the person taking an EBT); and CPLR 3126 (motions for sanctions for nondisclosure).

Preliminary Disclosure Conference

In some courts, particularly in Supreme Court, you may request a preliminary conference to involve the court in disclosure. At the conference, you can explain your disclosure disputes to the court.¹⁰⁰⁶ You and your adversary can agree to deadlines concerning disclosure.¹⁰⁰⁷ If a complicated disclosure issue arises and the court needs additional information or legal precedent, you and your adversary may set a briefing schedule.¹⁰⁰⁸ Some judges may require you to file a motion on notice for a contested disclosure issue.

If you’re seeking to strike pleadings, preclude evidence, or dismiss the case, you’ll need to move for sanctions under CPLR 3126. The court won’t entertain the drastic relief provided in CPLR 3126 at a preliminary conference.¹⁰⁰⁹

Any party may request a preliminary conference after issue has been joined but before disclosure is complete.¹⁰¹⁰ The request must contain the title of the action, the index number, the attorneys’ names (including their addresses and telephone numbers), and a brief statement of the nature of the action.¹⁰¹¹ If the court has yet to assign a judge to the case, file a request for judicial intervention (RJI).¹⁰¹²

At the conference, the parties must agree to complete disclosure within 12 months unless the court determines a different deadline.¹⁰¹³

The court will issue a preliminary conference order setting out your disclosure obligations and deadlines. Some courts in the court’s preliminary conference orders may vacate the statutory stay of disclosure under CPLR 3211, 3212, and 3213.

Check court rules if you’re seeking to modify a preliminary conference order. Some judges allow the parties to stipulate to extend the disclosure time limits.¹⁰¹⁴ Other judges require a formal motion to modify or vacate the preliminary conference order.¹⁰¹⁵

Preliminary conference orders — also known as scheduling orders¹⁰¹⁶ — aren’t appealable.¹⁰¹⁷ They don’t stem from a motion made on notice.

Disclosure Motion Papers

The CPLR’s formal motion rules apply to disclosure motions. Your disclosure motion must have a notice of motion.¹⁰¹⁸ You’ll also need an affidavit or affirmation that you’ve made a good-faith effort to resolve your disclosure dispute with your adversary.¹⁰¹⁹ You may also include any other supporting affidavit or memorandum of law. A copy of the disclosure request and the response, if a party responded to disclosure,¹⁰²⁰ will help the court resolve your disclosure dispute.

Good-Faith Affirmation

Every disclosure motion must be accompanied by an attorney affirmation explaining your good-faith efforts to resolve the disclosure dispute with your adversary.¹⁰²¹ The good-faith affirmation must “indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held.”¹⁰²²

Telling the court in the affirmation that you’ve sent a few letters and made a few telephone calls to your adversary might not be enough to show your good-faith effort.¹⁰²³ It’s wise to allege that you and your adversary have had “significant, intelligent and expansive contact and negotiations.”¹⁰²⁴

Motion to Extend or Expedite Disclosure

Practitioners often need more time to respond to disclosure than what the CPLR provides. To extend your time to respond, ask your adversary for an extension. If your adversary agrees, stipulate to a date certain. Comply with the deadline. If your adversary won’t agree to an extension, move for a protective order. Doing so automatically stays your obligation to comply with the disclosure demand until the court resolves your motion.¹⁰²⁵

You might want to move to expedite disclosure with respect to some items or with the entirety of disclosure.¹⁰²⁶ If you’re seeking to expedite disclosure, move by order to show cause to get the court to hear your motion quickly.

Motion for Supervision of Disclosure

Although the parties usually consent to disclosure without court supervision, the court may also assign a judge, law clerk, special master, or referee, such as a judicial hearing officer (JHO),¹⁰²⁷ to supervise any part of disclosure.¹⁰²⁸ A JHO is a retired judge who serves under article 22 of the Judiciary Law.¹⁰²⁹ Referees have all the powers of a court in supervising disclosure, “expect the power to relieve [themselves] of [their] duties, to appoint a successor, or to adjudge a[] person guilty of contempt.”¹⁰³⁰

Because courts often have congested calendars and limited personnel, a court will only rarely appoint a judge, special master, or referee, such as a JHO, to supervise disclosure.¹⁰³¹ A court might require you to show special circumstances before granting your motion for supervision.¹⁰³²

The parties to the litigation may also “stipulate to name a[] [private] attorney to act as a referee” to supervise disclosure.¹⁰³³

You may ask the court that appointed the referee to review the referee’s order.¹⁰³⁴ But the “evidentiary rulings made in advance of trial constitute, at best, an advisory opinion which is neither appealable as of right nor by permission.”¹⁰³⁵

Motion for a Protective Order

To guard against your adversary’s abuse of disclosure, move for a protective order under CPLR 3103. A “protective order is the law’s perpetual guard against disclosure abuses.”¹⁰³⁶ Protective orders are “designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”¹⁰³⁷

You may move for a protective order under CPLR 3103(a) even if you’re not a party to the litigation but someone is seeking disclosure from you as a non-party witness. This includes a non-party from whom an examination before trial (EBT) is sought by a party to the litigation. It may also include “the custodian of a paper or thing from whom discovery is sought.”¹⁰³⁸

Under CPLR 3103(a), the court “may at any time on its own initiative [sua sponte] . . . make a protective order.” The court might issue a protective order sua sponte if it sees that a party is taking advantage of another attorney who might lack “talent or experience,”¹⁰³⁹ if the court notices that during disclosure an attorney is taking advantage of a party who isn’t represented by an attorney,¹⁰⁴⁰ or if the court detects disclosure abuse “before a party or witness has complained of it by motion.”¹⁰⁴¹

Disclosure is suspended when you move for a protective order until the court decides the motion. The “mere making of the motion suspends the scheduled disclosure.”¹⁰⁴² If the disclosure involves a non-party witness, you, as the moving party, must notify the witness that disclosure is suspended.¹⁰⁴³ The stay applies to the “particular disclosure demand.”¹⁰⁴⁴ The court may direct that all disclosure continue or that all disclosure be stayed pending the motion.¹⁰⁴⁵

You may move for a protective order any time.¹⁰⁴⁶ Preferably, move for a protective order before your deadline to respond to your adversary’s disclosure request...