Part XXVIII Disclosure Motions Continued Disclosure Motions Continued

• Jurisdiction: New York

Part XXVIII — Disclosure
Motions Continued

In the last issue, the Legal Writer discussed disclosure¹⁰⁷⁸ motions: motions to compel disclosure, good-faith affirmations in support of disclosure motions,¹⁰⁷⁹ motions to extend or expedite disclosure, motions to supervise disclosure, motions for a protective order, and motions to compel disclosure. In this issue, we continue with motions to compel disclosure. We’ll also discuss sanction motions for nondisclosure.

In this column, “adversary” distinguishes the opposing party — either the demanding party seeking disclosure from you, or the non-complying, disobedient, or recalcitrant party, who hasn’t complied with your disclosure requests.

Moving to Compel Disclosure Continued

In the last issue, we discussed moving to compel pre-action disclosure. Once you’ve commenced an action, you’ll also need to know how to compel disclosure before, during, and after trial.

You may move to compel disclosure against a party or a non-party.¹⁰⁸⁰

Compelling Pre-Trial Disclosure

If your adversary fails to respond or comply before trial with “any request, notice, interrogatory, demand, question or order for disclosure except a notice to admit,” move to compel compliance under CPLR 3124.¹⁰⁸¹ If you’re seeking disclosure, the burden is on you to move to compel disclosure.¹⁰⁸²

If you’ve served your adversary with a set of interrogatories or a demand to produce, your adversary has 20 days to respond. Your adversary has 30 days to respond to a bill of particulars.¹⁰⁸³ Your adversary may object, “with reasonable particularity,” to some or all the items you’re seeking.¹⁰⁸⁴ If you believe you’re entitled to information to which your adversary has objected, move under CPLR 3124 to compel your adversary to respond.

A bill of particulars isn’t covered under CPLR 3124. Move to compel disclosure or for penalties under CPLR 3042(c) and CPLR 3042(d). Before compelling disclosure, the court must find that your adversary’s failure to respond was willful.

Notices to admit aren’t covered under CPLR 3124. CPLR 3123 has its own built-in remedies if your adversary doesn’t respond to a notice to admit. If your adversary has served you with a notice to admit and you want to object, move for a protective order.¹⁰⁸⁵

Some pre-trial disclosure requires a court order; you’ll need to move to compel disclosure. You’ll need a court order if you’re seeking to depose a prisoner even if that prisoner is a party to the action.¹⁰⁸⁶ Sending your adversary interrogatories in an action in which you’ve used other disclosure devices will require a court order, too.¹⁰⁸⁷

You have no time restrictions when moving to compel.¹⁰⁸⁸ But the sooner you move to compel, the better. Doing nothing about the motion or waiting until the last minute to move will make you look as irresponsible as your adversary.

Compelling Disclosure After Note of Issue (or Notice of
Trial) Is Filed

Disclosure ends once you’ve filed the note of issue and statement of readiness (or notice of trial in the lower courts). Filing the note of issue (or notice of trial) signals to the court that you’ve completed disclosure and that you’re ready for trial.¹⁰⁸⁹ You waive your right to further disclosure unless you demonstrate to the court “unusual or unanticipated circumstances, an order of the court, or agreement among the parties.”¹⁰⁹⁰ If all parties agree to conduct disclosure after the note of issue (notice of trial) is filed, “obtain a written, executed stipulation from all parties.”¹⁰⁹¹ Request that the court “so order” any stipulation between the parties.¹⁰⁹² The court isn’t required to enforce a stipulation executed between the parties to conduct post-note-of-issue disclosure.¹⁰⁹³ Once the court so orders the stipulation, it becomes the court’s order “with recourse in the event of non-compliance to all of the available enforcement mechanisms and penalties provided by the CPLR.”¹⁰⁹⁴

If your adversary filed the note of issue (or notice of trial) and disclosure remains outstanding, move to vacate the note of issue (or notice of trial) and seek additional disclosure.¹⁰⁹⁵

Some courts will allow disclosure to continue after you’ve filed the note of issue (or notice of trial).¹⁰⁹⁶ Some courts will impose deadlines for you to file the note of issue. Therefore, “[l]itigants are often placed in the uncomfortable position of having to file a note of issue and certificate of readiness before all necessary disclosure has been completed.”¹⁰⁹⁷ Know the rules of the court you’re practicing before.

Courts also differ on whether a party may seek a disclosure penalty, aside from the disclosure itself, after the note of issue (or notice of trial) is filed.¹⁰⁹⁸

Compelling Disclosure During Trial

You’ll need a court order if you’re seeking disclosure during trial. Most courts won’t delay a trial to permit you to obtain disclosure. If you can demonstrate to the court “unusual and unanticipated circumstances that developed after the matter was placed on the trial calendar,” you might convince the court to grant your motion for disclosure.¹⁰⁹⁹ You might also convince the court to allow you to depose a witness if you’ve located the witness only after the trial has begun, if the witness is situated beyond the court’s subpoena power, and if you’ve been diligent in attempting to locate the witness before the trial.¹¹⁰⁰

Compelling Post-Trial Disclosure

You’ll need a court order if you’re seeking disclosure after trial. The only exception is if you’re seeking disclosure under CPLR 5223. Under CPLR 5223, a judgment creditor may obtain disclosure about the debtor’s assets at any time, without a court order, before a judgment is satisfied or vacated. The judgment creditor may serve a subpoena to obtain the disclosable information. The information the judgment creditor seeks in the subpoena must be “relevant to the satisfaction of the judgment.”¹¹⁰¹

Motion to Compel Disclosure: Practical Pointers for
Motion Practice

Include as an exhibit to your motion to compel disclosure your underlying request for disclosure.¹¹⁰² Prove that you served the underlying disclosure request on your adversary.¹¹⁰³ Or, provide a copy of the court’s disclosure order.¹¹⁰⁴ Explain in your papers that the disclosure you’re seeking is material and necessary.¹¹⁰⁵ Give the court evidence that your adversary has refused to provide, in whole or in part, the disclosure.¹¹⁰⁶ Be specific about what disclosure your adversary hasn’t turned over. Explain in your attorney affirmation your good-faith efforts to resolve the disclosure dispute. Explain to the court that your adversary hasn’t offered a valid basis for objecting and refusing to provide the disclosure.¹¹⁰⁷ Explain to the court that your adversary’s conduct is willful or contumacious; or, explain that your adversary’s conduct — refusing to comply with disclosure — “may be inferred to be” willful or contumacious.¹¹⁰⁸

Tell the court how you’ll be prejudiced if your adversary isn’t compelled to turn over disclosure.¹¹⁰⁹ Explain to the court in detail the relief you’re seeking: a disclosure response, a penalty for your adversary’s failure to respond, or both.¹¹¹⁰ Depending on whether the note of issue (or notice of trial) is filed, you might want to ask the court to extend your time to file the note of issue (or notice of trial) or to permit disclosure while the case is on the court’s trial calendar.¹¹¹¹ Explain to the court why the disclosure you’re seeking, the penalty you’re seeking the court to impose, or both are appropriate.¹¹¹²

In opposing a motion to compel, you might explain to the court that you’ve already disclosed all the material your adversary sought. Attach as an exhibit the disclosure you’ve given to your adversary. If you haven’t yet turned over the disclosure materials to your adversary, you might want to provide the disclosure with the motion. Likewise, attach the disclosure materials as an exhibit. Tell the court in your opposition that you have, if any exists, a “privilege or a reasonable basis for asserting that the disclosure sought is palpably improper.”¹¹¹³ Establish that your failure to disclose wasn’t willful or contumacious.¹¹¹⁴ Explain how your adversary hasn’t been prejudiced by not receiving the improper disclosure or by “virtue of its having been furnished [with disclosure] late.”¹¹¹⁵

Moving for Sanctions and Penalties for Nondisclosure

If you seek to penalize your adversary for not complying with your disclosure demands, move for sanctions under CPLR 3126, “the enforcement arm of the [CPLR’s] disclosure article.”¹¹¹⁶ The sanctions available to the court aren’t...