A09077 Summary:

BILL NO    A09077 

SAME AS    SAME AS S05077

SPONSOR    Weinstein

COSPNSR    Gottfried

MLTSPNSR   

Amd R3113, CPLR

Relates to conduct of the examination before trial.
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A09077 Actions:

BILL NO    A09077 

03/12/2014 referred to judiciary
05/28/2014 reported 
05/30/2014 advanced to third reading cal.844
06/09/2014 substituted by s5077
           S05077  AMEND=  BONACIC
           05/08/2013 REFERRED TO JUDICIARY
           01/08/2014 REFERRED TO JUDICIARY
           02/27/2014 1ST REPORT CAL.193
           03/03/2014 2ND REPORT CAL.
           03/04/2014 ADVANCED TO THIRD READING 
           05/07/2014 PASSED SENATE
           05/07/2014 DELIVERED TO ASSEMBLY
           05/07/2014 referred to judiciary
           06/09/2014 substituted for a9077
           06/09/2014 ordered to third reading cal.844
           06/09/2014 passed assembly
           06/09/2014 returned to senate
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A09077 Votes:

There are no votes for this bill in this legislative session.
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A09077 Memo:

BILL NUMBER:A9077

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to conduct of the examination before trial

This is one in a series of measures being introduced at the request of
the Chief Administrative judge upon the recommendation of her Advisory
Committee on Civil Practice.

This measure would amend CPLR 3113(c) in relation to participation of
a nonparty's counsel in a deposition.

In Thompson v Mather, 70 AD3d 1436 (4th Dept 2010), a medical
malpractice action, arrangements had been made for videotaped
depositions - for use at trial (22 NYCRR 202.15) - of plaintiff's
treating physicians. During the course of those depositions, the
attorney for a witness objected to the form and relevance of certain
questions. The Appellate Division ultimately ruled that "counsel for a
nonparty witness does not have a right to object during or otherwise
to participate in a pretrial deposition." The Court principally relied
upon the language of CPLR 3113(c), which provides that the examination
of witnesses at a deposition "shall proceed as permitted in the trial
of actions in open court." And, reasoned the Court, since a
non-party's attorney has no right to interpose objections to questions
asked of the witness at trial, no such right exists at deposition.

While recognizing that the Thompson Court may have correctly
interpreted the literal language of the statute, our Committee
believes that the law should provide otherwise. In reducing counsel
for a deposition witness to a "potted plant" (Sciara v. Surgical
Associates of Western New York, P.C., 32 Misc.3d 904 (Sup. Ct Erie
Co.2011)), current law, as recognized in Thompson, leaves a non-party
witness essentially unprotected during a deposition. A lay witness may
not, for example, know when to decline to answer a question because it
invades a privilege, or is plainly improper and would, if answered,
cause significant prejudice to any person. Moreover, a likely result
of application of the Thompson ruling is that a party will be
encouraged to depose a potential adverse party before joining that
person as a party to the action, in order to be able to avoid the
objections that a party's lawyer would be able to make at a
post-joinder deposition. Our Committee believes that this strategy
ought not be promoted.

In the Sciara decision cited above, Supreme Court interpreted
Thompson's restrictions as being limited to objections to form or
relevance. That interpretation, if upheld, would ameliorate the
deleterious effects of Thompson. But our Committee believes that a
witness's attorney should be able to protect all of the witness's
interests, and have the same right to object at a deposition as does
an attorney for a party.

Accordingly, we have recommended an amendment to CPLR 3113 (c) to
specifically provide that a non-party's counsel may participate in the
deposition and make objections on behalf of his or her client in the
same manner as counsel for a party."


This measure would have no fiscal impact on the State. It would take
effect immediately and shall apply to all actions pending on such
effective date or commenced on or after such effective date.

2012 Legislative History:

Senate 6656-A (Bonacic; NO SAME AS) (Rules)
Assembly 9479 (M. of A. O'Donnell) (judiciary)
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A09077 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         9077

                                 I N  A S S E M B L Y

                                    March 12, 2014
                                      ___________

       Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
         Administration) -- read once and referred to the Committee on  Judici-
         ary

       AN ACT to amend the civil practice law and rules, in relation to conduct
         of the examination before trial

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Subdivision (c) of rule 3113 of the civil practice law  and
    2  rules is amended to read as follows:
    3    (c)  Examination and cross-examination. Examination and cross-examina-
    4  tion of deponents shall proceed as permitted in the trial of actions  in
    5  open  court,  EXCEPT THAT A NON-PARTY DEPONENT'S COUNSEL MAY PARTICIPATE
    6  IN THE DEPOSITION AND MAKE OBJECTIONS ON BEHALF OF HIS OR HER CLIENT  IN
    7  THE  SAME MANNER AS COUNSEL FOR A PARTY.  When the deposition of a party
    8  is taken at the instance of an adverse party, the deponent may be cross-
    9  examined by his OR HER own attorney.    Cross-examination  need  not  be
   10  limited to the subject matter of the examination in chief.
   11    S  2.  This  act  shall take effect immediately and shall apply to all
   12  actions pending on such effective date or commenced  on  or  after  such
   13  effective date.





        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09842-01-3
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