(a) Disclosure devices. Information is obtainable by one or more of the following disclosure devices: depositions upon oral questions or without the state upon written questions, interrogatories, demands for addresses, discovery and inspection of documents or property, physical and mental examinations of persons, and requests for admission.
§ 3102.Method of obtaining disclosure.
Article 31. Disclosure · Last amended 2025 · Last verified July 21, 2026
In one sentenceCPLR 3102 lists the available disclosure devices, sets the default rule that disclosure proceeds by stipulation or notice without a court order, and fixes when an order is required instead — before an action starts, after trial has begun, or when an out-of-state case seeks a New York witness's testimony.
Full Text of CPLR 3102
(b) Stipulation or notice normal method. Unless otherwise provided by the civil practice law and rules or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court.
(c) Before action commenced. Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may appoint a referee to take testimony.
(d) After trial commenced. Except as provided in section 5223, during and after trial, disclosure may be obtained only by order of the trial court on notice.
(e) Action pending in another jurisdiction. Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, such witness may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition; provided that no order shall be issued under this section in connection with an out-of-state proceeding relating to any legally protected health activity, as defined in section 570.17 of the criminal procedure law, unless:
(1) such out-of-state proceeding (i) sounds in tort or contract, (ii) is actionable, in an equivalent or similar manner, under the laws of this state, and (iii) was brought by the person who received reproductive health care or gender-affirming care, as such terms are defined in section 570.17 of the criminal procedure law, or the person’s legal representative in a manner consistent with subdivision (g) of section three thousand one hundred nineteen of this article; and
(2) the petition for such an order is accompanied by an affirmation compliant with subdivision (f) of this section.
(1) Any petition for such an order brought under subdivision (e) of this section shall include an affirmation under penalty of perjury that the discovery either:
(i) is not related to, and that any information obtained shall not be used in, any investigation or proceeding that seeks to impose civil or criminal liability, professional sanctions, or any other legal consequences upon a person for any legally protected health activity; or
(ii) is related to such an investigation or proceeding, but falls within an exception provided in paragraph one of subdivision (g) of section three thousand one hundred nineteen of this article. Such affirmation shall identify which exception applies to the request.
(2) A party that submits a false affirmation pursuant to this section shall be subject to the jurisdiction of the courts of this state for any suit, penalties, or damages arising out of the false affirmation. A court shall assess a statutory penalty of fifteen thousand dollars per violation if the court finds the false affirmation was made intentionally, knowingly, willingly or recklessly. This shall be in addition to any other legal or equitable remedy lawfully available. The attorney general may commence an action or special proceeding for damages and/or penalties against any party that submits a false affirmation pursuant to this section. Any action or special proceeding brought by the attorney general pursuant to this section shall be commenced within six years of the date on which the inquiry, investigation, subpoena, or summons that such false affirmation accompanied was filed with the supreme court or county court.
(g) Action to which state is party. In an action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person.
Plain-English Summary
Subdivision (a) names the toolkit: depositions on oral or written questions, interrogatories, demands for addresses, document and property inspection, physical and mental examinations, and requests for admission. Subdivision (b) then sets the default gear for using them — once an action is pending, parties exchange this discovery on their own, by stipulation or plain notice, without asking the court for permission first. That default is what makes New York disclosure practice largely self-executing between the filing of the answer and the note of issue.
The section also marks the boundaries of that default. Before anyone has filed a summons and complaint, a prospective litigant needs a court order to take pre-action disclosure — to nail down a fact, preserve testimony, or aid an arbitration — and the court can appoint a referee to take it. Once trial has begun, the same is true in reverse: disclosure during or after trial requires a court order on notice, since by then the case is supposed to be running on the evidence already gathered. Subdivision (g) confirms that the state itself gets no special treatment when it is a party; it discloses like any private litigant.
Subdivisions (e) and (f) address interstate cases, where a court outside New York needs a New York witness's testimony. New York courts will compel that witness to appear and testify as if the case were pending here. Recent amendments added a screening requirement for certain out-of-state matters touching reproductive health care or gender-affirming care: the party seeking the New York order must submit a sworn affirmation that the discovery is not being used to pursue liability against someone for that legally protected activity, or that a listed exception applies, and a knowingly false affirmation carries a steep statutory penalty and can be pursued by the Attorney General. This is New York's discovery-side complement to laws shielding those who provide or receive that care from out-of-state legal process.
Frequently Asked Questions
What discovery devices are available under CPLR 3102?
Depositions on oral or written questions, interrogatories, address demands, document and property inspection and discovery, physical and mental examinations, and requests for admission. Subdivision (a) lists them together as the full menu available in a New York civil action.
Do I need a court order to take discovery in a pending New York lawsuit?
Generally no. Subdivision (b) makes stipulation or notice the default method once an action is pending, so parties exchange discovery directly unless a specific CPLR provision or the court says otherwise.
Can I get discovery before I file a lawsuit in New York?
Yes, but only with a court order under subdivision (c), obtained to help bring the action, preserve information, or aid an arbitration. The court may appoint a referee to take that pre-action testimony.
Can discovery continue after a New York trial has started?
Only by order of the trial court on notice. Subdivision (d) cuts off the normal stipulation-or-notice process once trial is underway, with a narrow carve-out for enforcement proceedings under section 5223.
How does New York compel a witness here to testify for an out-of-state lawsuit?
Subdivision (e) lets a New York witness be compelled to appear and testify for another jurisdiction's case using the same process used in New York actions, with the supreme or county court issuing the necessary order.
What is the affirmation requirement for out-of-state discovery about reproductive health or gender-affirming care?
Subdivisions (e) and (f) require the party seeking the New York order to submit a sworn affirmation that the discovery is not aimed at imposing liability for legally protected reproductive or gender-affirming health care, or that it falls within a defined exception. A knowingly false affirmation exposes the filer to a fifteen-thousand-dollar penalty per violation and potential Attorney General enforcement.
Does the State of New York get special discovery treatment when it is sued?
No. Subdivision (g) makes disclosure by the state available on the same terms as disclosure by a private party.
Advisory Committee Notes
Subd (a). Parties are not limited in their choice to one or more disclosure devices. Nor is there any express limit on the number of times a device may be used. However, abuse, either wilful or due to incompetence, may be checked by CPLR § 3103. It was not considered necessary to mention that ancillary actions for discovery have been abolished. CPA § 345.
Subd (b) of this section is broader than the Federal rule since it makes every discovery device obtainable, in the first instance, on notice without application to the court. In the case of discovery and inspections, for example, an application to the court will be required only if the parties cannot agree on terms. Therefore, the normal reaction should be to go to the opponent before bringing the matter to the court’s attention. In the opinion of the advisory committee, it is desirable to maintain, to the extent practicable, maximum control and supervision of litigation by the parties rather than the courts. Compare the criticism of the English practice, requiring a routine application to the master for disclosure in every case, in Young, Summons for Directions, 106 LJ 262 (1956). Where attorneys cannot or will not cooperate, the court is given broad power in subsequent provisions to strike hard to prevent abuse. Parties might not formerly stipulate to examine someone confined to prison under sentence for a felony. The intention has evidently been to prevent fictitious suits from being used to interfere with prison routine. The former provision has been broadened by CPLR rule 3106(c) to include any prisoner.
Subd (c). The extent to which disclosure before suit should be permitted is left to the court’s discretion. Implicit in CPLR § 3101(a) is the limitation that the scope of disclosure there provided does not apply prior to commencement of an action. Orders will be obtained on motion. Unless the specific rule provides for times or notice, the general rule controlling motions governs. CPA §§ 313 to 321 which dealt with the perpetuation of testimony in real property actions, is no longer required, since it is covered by more general provisions of the new CPLR. The new provisions contain no provision equivalent to former CPA § 316 which permitted a person in possession of real property for more than a year who claimed an interest greater than a term of ten years to apply for perpetuation of testimony. Such a person, however, could presumably have made such an application formerly under § 295. The court under the new CPLR could deny perpetuation if it felt the applicant’s interest in the land was insufficient to warrant the relief sought. CPA § 317 directed that the order should specify the person to be notified and the method of notice. Such directions seem superfluous. CPA §§ 317, 318, 319 and 320 required a referee to take the testimony. Under this subdivision the appointment of a referee is made discretionary. CPA §§ 318 and 320 required a copy of the deposition to be recorded, evidently for the protection of persons searching titles. This provision is carried over into this subdivision. Neither in the civil practice act nor in this subdivision is there any indication of the sanction for failing to record. No change is intended in this respect. Nor is it intended to change the provision that the deposition might be used against those who received notice that it was to be taken “and all persons claiming from, through or under them.” Compare CPA § 321 with CPLR § 3117(c).
Subd (d) of this section is essentially the same as CPA § 293. The rule has been broadened to include discovery pending appeal. The trial court is in a better position than the appellate court to control disclosure since it is already familiar with the case.
The first sentence of subd (e) of this section is the uniform foreign depositions act which has been adopted in sixteen jurisdictions. It covers CPA §§ 310 to 312. The last sentence is based on CPA § 311. The order may be obtained on an ex parte application.
Subd (f) of this section has been added at the suggestion of the Attorney-General’s office that any other rule would unnecessarily burden the state. It is contemplated, however, that disclosure will be rather freely granted by the Court of Claims.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 422, § 1, eff Sept 1, 1963; L 1964, ch 388, § 15, eff Sept 1, 1964; L 1967, ch 638, § 1; L 1984, ch 294, § 3; L 1993, ch 98, §§ 3, 4, eff Jan 1, 1994; L 2010, ch 29, § 3, eff Jan 1, 2011; L 2022, ch 219, § 5, effective June 13, 2022; L 2023, ch 138, § 5, effective June 23, 2023; L 2023, ch 143, § 4, effective June 25, 2023; L 2024, ch 101, § 4, effective June 25, 2023; L 2025, ch 694, § 3, effective December 19, 2025.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: New York discovery devicespre-action disclosure New Yorkdisclosure by stipulation or notice New YorkNew York out-of-state deposition subpoenashield law affirmation discovery New York