R 3106.Priority of depositions; witnesses; prisoners; designation of deponent.

Subd (a) of this rule is based on Federal rule 26(a) and the practice of our Second Department under RCP 121-a. This is the sole reference to the problem of priorities. Subd 1 of both Bronx County Supreme Court rule XX and New York County Supreme Court Trial Term rule XI provides for a 30-day period after joinder of issue before examinations can begin, except in negligence cases involving personal injury. This is designed to give the parties an opportunity to make motions directed to the pleadings. Under this subdivision such a delay seems unwarranted. However, where a motion for summary judgment or to dismiss before answers is made under article 32, disclosure is stayed by a provision in that article. The motion may be made ex parte but normally the court should require notice where priorities are involved. Use of the words “of a party” in the last sentence permits the plaintiff to examine a witness without an order within the twenty-day period and will avoid injustice where, for example, a witness is about to depart from the jurisdiction, while at the same time requiring the plaintiff to obtain an order for examination of an adverse party during that period. A defendant is permitted to examine immediately upon being served with the complaint and examination at such time is not unfair to the plaintiff. This accords with the Federal practice.

Subd (b) of this rule is new. A nonparty witness has ample protection against annoyance under CPLR § 3103(a), and there is no need to deprive parties of a required examination. The advisory committee considered but rejected the possibility of providing a fee for a witness’ attorney in all cases. A rule based on this proposal would have added unnecessarily to the costs of taking depositions. Abuse of witnesses is rare. It is limited by opposing attorneys whose self-interest leads them to protect against a witness being unfairly treated. The advisory committee also rejected the recommendation of the Association of the Bar of the City of New York, Subcommittee on State Discovery of the Committee on Courts of Superior Jurisdiction, dated April 15, 1954, that examination before trial of a witness be permitted only if he refuses to set forth his knowledge of the facts in affidavit form. Such a plan is unacceptable because affidavits are normally drawn by lawyers. If the witness is in the opponent’s camp, the affidavit will be drawn by the opponent; if he is in the camp of the party seeking the examination, he will willingly grant the boon of a writing without this rule and, in any event, it is unlikely that his examination would be sought. If the witness is truly neutral, the person seeking the examination may well coerce him into signing a favorable affidavit on the threat that if an affidavit is not signed, there will be a deposition. In those cases where information is given to each side and a statement signed willingly, it is unlikely that either party will want to harass the witness and create ill will by requiring a deposition. Formerly a witness might be examined if he refused to give an affidavit for use on a motion (CPA § 307; RCP 120) or if he might have known the location of a chattel. CPA § 1094-a. In addition, there was a general provision permitting depositions where there was an expectation of unavailability at the trial. CPA § 288. No special provision has been made for physicians, surgeons and nurses of a “charitable institution” to be examined before referee as formerly provided in CPA § 296-a. Ample protection to such hospital personnel will be afforded by this subdivision and CPLR §§ 3103 and 3104. There is, moreover, good reason to rely upon the selfish interest of attorneys not to antagonize such persons, since their testimony may be important in a case. The advisory committee considered a rule based on section 13:3748 of the Louisiana revised statutes and rule 7(c) of subd 1 of part 2 of the Maryland rules, reading as follows: “If the witness whose deposition is to be taken is out of this state, the law of the place where the deposition is to be taken shall govern the process to require his appearance and testimony, but otherwise the provisions of this title shall be applicable to such a deposition.” It rejected this proposal as unnecessary because self-evident. Also rejected was a rule based on rule 30(b) of the New Mexico rules, reading as follows: “Where it appears that such a witness is under the control of one of the parties, the court, on such terms as may be appropriate, may require the party to bring such witness within the state so that his deposition may be taken here.” This power exists under this article. See notes to CPLR § 3103(a). The provision in the second sentence that motion may be made with or without notice takes care of the situation where immediate examination is desired of a witness who is about to depart from the state.

Subd (c) of this rule reflects a similar provision in CPA § 297 which was restricted, however, to imprisonment for felonies.

Add, L 1962, ch 308; amd, L 1984, ch 294, § 4, eff Sept 1, 1984; L 1985, ch 327, § 1, eff July 11, 1985.