Section 1.1 A. Scope Of Discovery

• Jurisdiction: New York

A. Scope of Discovery

The scope of discovery allowable in depositions and other discovery devices in New York State practice is expansive: “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.”¹ This broad scope is “consistent with New York’s policy of permitting ‘open and far-reaching pretrial discovery.’ ”² The statute reflects New York’s “policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise.”³ In the well-known case of Allen v. Crowell-Collier Publishing Co.,⁴ Chief Judge Fuld wrote:

The words, “material and necessary,” are, in our view, 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. CPLR 3101 (subd. [a]) should be construed . . . to permit discovery of testimony “which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable.” ⁵

As one would expect, the rule of broad disclosure is not unlimited. The court must balance conflicting considerations—the need for the disclosure must be weighed against competing interests, such as any special burden the discovery might impose on the other party, a need for unusual expedition or a requirement of confidentiality.⁶ Discovery must not become a source of unreasonable annoyance or tend to harass or overburden another party or a witness.⁷

Because matter discoverable under CPLR 3101(a) is not limited to what is admissible in evidence, an objection at a deposition that the question seeks an answer that cannot be used at trial is invalid. As noted, the standard is whether the discovery sought may lead to the disclosure of admissible evidence.⁸

Notwithstanding the CPLR’s broad approach to discovery, the statute establishes three categories of protected material: (1) privileged matter, (2) attorney work product and (3) trial preparation materials. These protections have a long history in American and English jurisprudence and are based upon important principles.⁹ Attorney work product and matter covered by the attorney-client privilege and other recognized privileges are immune from discovery.¹⁰ Trial preparation materials may be obtained only upon a...