Super Lawyers
William C. Altreuter
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Thursday, December 23, 2010

New York's rules with respect to nonparty depositions continue to vex.  As Outside Counsel previously reported, the Second Department has held that notwithstanding the amendment to the statute "special circumstances" must be shown when seeking to depose a non-party. Comes now the Third Department, which holds that something more than mere relevance or materiality must be shown to obtain discovery from a non-party such as a demonstration that the information cannot be obtained from sources other than the non-party. Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau.  Show me where it says it in the statute.

What is particularly troublesome about this line of cases is that it is difficult to fix.  Amending the statute doesn't work, since the language of the statute doesn't seem to have an effect on the minds of the Appellate Division justices.  The other path would be to get the Court of Appeals to have a look, but taking a discovery dispute to the highest court in the state is an expensive burden to place on a lawsuit where the discovery issues are likely to be largely collateral to the heart of the matter.

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