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William C. Altreuter
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Tuesday, May 18, 2010

When I started practicing the New York rule with respect to non-party discovery and non-party depositions was that you had to make a motion, on notice to your adversary and to the non-party who you wanted to depose or get discovery from. (We called depositions "EBTs" back then.) The standard that the court applied was whether there were "special circumstances" present which made the deposition necessary. This was a cumbersome, inefficient system, so in 1984 CPLR 3101 was amended to eliminate the special circumstances requirement. In relevant portion it now reads:

§ 3101. Scope of disclosure
(a) Generally. 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.

In 2002 the legislature eliminated the requirement of bringing a motion-- now all anyone who wanted non-party discovery had to do was issue a subpoena. This was a sensible innovation as well-- since special circumstances were no longer required, there was no need to have the court micromanaging discovery, which everyone hates anyway.

Here's the part where I give a shout-out to a couple of CPLR mavins. In the "Practice Insights" to the Consolidated Law Service edition of the CPLR, edited by David L. Ferstendig, David Hamm says, "CPLR 3101(a)(4) seems clear enough, providing that the 'full disclosure' mandate applies not only to parties, but to 'any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.' Like a party deposition, all one needs to show to obtain a non-party E.B.T. is that such testimony would be "material and necessary" to the action."

Unfortunately, the Second Department says nay. For reasons best known to the judges that sit serenely in the marble blockhouse in Brooklyn Heights the "special circumstances" rule that the legislature discarded two dozen years ago is still regarded as good law there-- great law, even. They've been insisting on this for a while now, and now, in a decision announced May 11, 2010, they have shifted their stance a bit and adopted what is apparently a crypto special circumstances rule. The case is Kooper v. Kooper, and it is all kinds of stupid and wrong.

It's a matrimonial. The defendant issued a half dozen subpoenas to banks, looking for financial information about the plaintiff, who moved to quash. Supreme Court granted the motion, and Anita R. Florio, Daniel D. Angiolillo, Cheryl E. Chambers and Plummer E. Lott affirmed. They say that it doesn't matter what the statute says, because the court has discretion in discovery matters. The Second Department reckons that if you want non-party discovery you should have to show something. Maybe you should demonstrate that the information was unobtainable from other sources; or that there is a conflict in statements between the plaintiff and nonparty witness; or that there are inconsistencies in the nonparty's statements that need to be clarified. It is not clear where this comes from, but we know where it doesn't come from-- you won't find it in the statute.

This decision is offensive. It creates a new rule, but that's not even the best part. After laying all this out the court goes on to say:

"We decline, here, to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case."

You will just have to guess. We know that this rule is not in the statute, and in fact we've made it up out of whole cloth, but we aren't interested in telling you what we think the rule is; you'll just have to take an appeal and find out.

They also say, "The Legislature would not have included a separate subsection of the statute for nonparties if discovery from parties and nonparties were subject to identical considerations." This carries Bismarck's remark about law any and sausages to new heights. Not only is the Second Department genteelly averting its gaze from the operations of the New York State Legislature, it is pretending that the section in question wasn't an amendment to the statute, even though most of the opinion is a nostalgic look back at the way non-party discovery used to be conducted twenty five years ago.

Decisions like this mystify me. First of all, it creates a two track system for discovery which is, at a minimum, unwieldy, and actually probably impossible. You have to get your regular discovery done first, then show that it isn't enough. Then you have to be ready for motion practice, because a motion to quash will follow the issuance of a subpoena to a non-party as surely as a pastrami sandwich follows an appearance by me in the County of Kings. And an appeal will follow that more often than not, because only the Second Department knows the magic words that will allow a non-party deposition.

The really sad part is that there isn't an easy way to fix this. Some poor bastard is going to have to care enough about an item of non-party discovery to take the question to the Court of Appeals. A legislative fix isn't going to get it done-- what would you add to the statute? "We mean it-- no special circumstances need be shown"? That's not going to work under the crypto special circumstances regime. The Second Department will just call it something else.

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