A practitioner's continued uncertainty: disclosure from nonparties.

• Author: Ferstendig, David L.
• Position: New York

Prior to a 1984 amendment to New York's Civil Practice Law and Rules ("CPLR") 3101(a)(4), a party seeking discovery from a nonparty was required to show "special circumstances." (1) Notwithstanding the removal of that requirement, some Departments of the Appellate Division have continued to use that standard, and the four Departments currently differ on the standard to apply. Most recently, in Kooper v. Kooper, the Second Department highlighted the confusion in this area when it rejected its prior continuing application of the "special circumstances" standard in favor of a new loosely-defined standard, not applied by any of the other Departments. (2) Thus, until the Court of Appeals rules--not a certainty in view of the difficulty of getting such a discovery issue reviewed there--practitioners must keep up-to-date on developments in each Department and be prepared to make the requisite showing. Unfortunately, this is merely one small part of the maze of uncertainty that New York practitioners face with respect to basic elements of New York practice and procedure, and which negatively impacts the system.

1. PRE-1984 AMENDMENT CASE LAW

   Disclosure in general is governed by CPLR Article 31. Prior to 1984, CPLR 3101(a)(1) permitted disclosure of any person where the court on motion determined that there were adequate "special circumstances." (3) Courts interpreting the "special circumstances" standard prior to 1984 came to widely varying conclusions. For example, in Gersten v. New York Hospital, the court held that a mere showing that the lawyer needed the nonparty deposition in order to prepare for trial was sufficient. (4) In McDonald v. Gore Mountain Ski Lift Corp., however, the court concluded that "examinations of a witness are permitted when it is established that the witness is hostile, or where the witness has special or exclusive knowledge of the facts in issue." (5)

2. THE 1984 AMENDMENT

   In 1984, CPLR 3101(a)(4) was amended (6) to read as it does today:

   (a) 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:...

   (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. (7)

   The introductory paragraph, which modifies all of the following four subparagraphs, clearly mandates "full disclosure of all matter material and necessary." (8) This latter phrase has been interpreted to mean all useful or needful information. (9) Thus, the only requirement applicable to discovery from a nonparty, as opposed to a party, is the notice stating the circumstances or the reasons for the discovery sought from the nonparty.

   The requirements that the party first seek a court order and establish special circumstances were both eliminated. (10) The sponsor's memorandum for the 1984 amendment stated that:

   Recent interpretations of the CPLR section 3104(a)(4) have held that it is procedurally incorrect to seek discovery from a non-party witness without first securing a court order. This strict interpretation, contrary to the purpose of the disclosure statutes, places an obstacle in the path of the discovery process. The proposed amendment would eliminate this burden and allow for the discovery of any person who possesses material and necessary evidence. All of the necessary protections to avoid abuses of non-party witnesses presently exist under CPLR 3103 and 3104. (11) III. FEDERAL PRACTICE

   Discovery, in general and from nonparties, is liberal and freely available under federal practice. Interestingly, a June 22, 1984 letter written on behalf of the New York County Lawyers' Association's State Legislation Committee, and approving the 1984 amendment, remarked that it would conform the language of the statute to both "[New York] judicial interpretation as well as federal practice." (12) Thus, in theory, nonparty discovery in state practice should be as liberal as in federal practice. (13) State practice remains more limited, however. (14)

4. 2003 AMENDMENTS TO DOCUMENT DISCOVERY FROM NONPARTIES

   In 2003, a major amendment became law with respect to seeking document discovery from nonparties. (15) Prior to the amendment, a party was forced to move for a court order to obtain documents from a nonparty. (16) Faced with this possibility, many parties tried to avoid this issue by subpoenaing the nonparty, without the necessity of a court order, and at the same time requesting documents pursuant to CPLR 3111. (17) Frequently, the party would then advise the nonparty that he or she could avoid appearing at the deposition by merely providing the documents. (18)

   The 2003 amendment, among other things, (19) eliminated the requirement that an order be obtained, and instead permitted the service of a subpoena duces tecum on the nonparty with the following requirements:

   1. The subpoena is to specify a time not less than twenty days after the service of the subpoena, and the place and manner of making the inspection. (20)

   2. The subpoena is to "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." (21)

   3. At the same time the subpoena is served, copies of the subpoena are to be served upon all parties. (22)

   4. Significantly, within five days of compliance with the subpoena and the production of the documents, the party issuing the subpoena is required to notify the other parties that the items produced will be available for inspection and copying, advising as to the time and place of such inspection and copying. (23)

   Thus, on its face the 2003 amendment is yet another example of an effort to make nonparty discovery easier and comparable to party discovery.

5. "SPECIAL CIRCUMSTANCES" AFTER THE 1984 AMENDMENT

   As will be discussed more fully below, notwithstanding the express removal of the requirement to show "special circumstances" in seeking nonparty discovery, some courts have continued to apply that standard.

   While the post-1984 case law applying the standard has not been uniform, it has set out certain guidelines. Thus, for example, the discovery sought from the nonparty must be "material and necessary." (24) However, as discussed above, that requirement applies to disclosure in all civil actions in general, whether sought from a party or nonparty.

   Another consideration and significant factor applied has been whether a party can obtain the disclosure from other sources. (25) Some courts have qualified the "other sources" proviso, stating that a party can also satisfy the special circumstances standard by requesting disclosure that "is necessary to prepare for trial." (26)

6. THE CONFLICT AMONG THE DEPARTMENTS

   First Department decisions that immediately followed the 1984 amendment, dealing with the issue of the applicability of the amendment to appeals pending in existing actions, were able to avoid the issue by concluding that the prior liberal interpretation applied by Kenford Co. v. County of Erie (27) to the old statute certainly applied after the amendment. (28)

   Things started to go awry after the Second Department's decision in Dioguardi v. St. John's Riverside Hospital. (29) There, the court continued to apply the pre-1984 special circumstances standard:

   It is proper to direct disclosure against a nonparty witness only in the presence of adequate special circumstances. This requirement survived the 1984 amendment to CPLR 3101(a)(4). The existence of such "special circumstances" may be shown by establishing that the information sought to be discovered cannot be obtained from other sources. The existence of "special circumstances" is not established, however, merely upon a showing...