Proposed legislation, Assembly Bill 8316, the same as Senate Bill 4256, would amend the civil practice law and rules by adding a new section 3119, the Uniform Interstate Depositions and Discovery Act.  To stay up to date on discovery practice in the New York Supreme Courts, consult the SmartRules Guides for the discovery practice in the court where your action is pending. 

Regarding the need for the Uniform Depositions and Discovery Act, the official New York Legislative website states that: 

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

In 2008, on the advice of our Advisory Committee, we recommended amending the CPLR to adopt the Uniform Interstate Depositions and Discovery
Act (” Act”) as promulgated by the National Conference of Commissioners of Uniform State Laws in 2007. The Act sets forth an efficient and inexpensive procedure for, litigants to depose out-of-state individuals and for the production of discoverable materials that may be located outside the trial state. In 2009, we again endorse New York’s adoption of the Act. This year, however, we amend our proposal by (1) adding a subparagraph (b)(4) to CPLR section 3119 to ensure that the law is clear regarding the ability of an attorney, licensed to practice in this state and retained by a party to an out-of-state-proceeding, to issue a
subpoena under this Act and (2) adding a reference to CPLR Article 23 in proposed new section 3.119(b)(2) and a reference to CPLR Article 31 in proposed new section 3119(d) to make it explicit that these articles apply to this Act.

Under the Act, litigants can submit to the county clerk of the county, located in the state where discoverable materials or individuals are sought, a subpoena issued under the authority of a court in the trial state. Once the discovery state clerk receives the out-of-state subpoena, the clerk will issue a subpoena for service upon the person or entity to which the original subpoena is directed. The terms of the subpoena issued in the discovery state must incorporate the same terms as the original subpoena and contain the contact information for all counsel of record and any party not represented by counsel.

The Act requires minimal judicial oversight since there is no need to present the matter to a judge in the discovery state before a subpoena is issued. The procedure set forth is inexpensive because it eliminates the need to obtain a commission or local counsel in the discovery state  or letters rogatory, or to file a miscellaneous action during the discovery phase of litigation.

Under the Act, discovery authorized by the subpoena must comply with the rules of state in which it occurs. Furthermore, motions to quash, enforce, or modify a subpoena issued pursuant to the Act shall be brought in and governed by the rules in the discovery state. The county clerk in the discovery state acts in a purely ministerial role, but in a manner that is sufficient to invoke jurisdiction of the discovery state over the deponent. The Act recognizes that the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in another jurisdiction from unreasonable or burdensome discovery requests.

In particular, this measure adds a new section 3119 to the CPLR, and appropriately references sections of the CPLR where particularly applicable. Notably, under subdivision (a) the term “subpoena” includes a subpoena duces tecum, and does not include a subpoena for inspection of a person. We recognize that medical examinations in a personal injury case, for example, are separately controlled by existing discovery rules. Since the plaintiff is already subject to the jurisdiction of the  trial state, a subpoena for his or her examination should never be necessary. Further, the term “court of record” is intended to exclude
non-court of record proceedings to avoid expansion to arbitration proceedings. Also, the term “submit” to a county clerk is intended to include delivering to or filing. Submitting a subpoena to the clerk in the discovery state, so that a subpoena is then issued in the name of the discovery state, is the necessary act that invokes the jurisdiction of the discovery state, which in turn makes the newly issued subpoena both enforceable and challengeable in the discovery state.

This measure will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction (in contrast with CPLR 3108). The Act does, however, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. Finally, this measure modifies existing section 3102(e), which currently governs compelling a witness found in
New York to give testimony for use in a foreign jurisdiction, since the Act supersedes that section with respect to actions pending in another state, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and certain other territories subject to U.S. jurisdiction.

This measure, which would have no fiscal impact on the State, would take effect on the first day of January next succeeding the date on which it shall have become a law and apply to requests for discovery in cases pending on or after such effective date.”

Use this “List of Must Knows” to learn the statewide rules of civil procedure, New York’s Civil Practice Law and Rules (“CPLR”), you need to know to propound interrogatories in the New York Supreme Court.  For more detailed treatment of interrogatories in the New York Supreme Court, including local rules, please see the New York Supreme Court SmartRules Guides Interrogatories, and Response to Interrogatories.   Also, regarding formatting requirements please see the New York Supreme Court Guide Generally Applicable Rules and Formatting Requirements.   

Must Know List Re Interrogatories–CPLR

Any party may serve interrogatories on any other party at any time after commencement of the action. CPLR 3130; CPLR 3132.

Unless the Court directs otherwise, no party may serve interrogatories on a defendant until the time has expired for that defendant to serve a responsive pleading. CPLR 3132.

Within twenty (20) days after being served with interrogatories, the party served must serve on each other party a copy of the answer or objection to each interrogatory. CPLR 3133(a). No additional time is added to this period if service was made by personal delivery, facsimile or electronic transmission. CPLR 2103(b)(1), (5) and (7).  If the interrogatories were served by overnight delivery add one (1) day to the response period. CPLR 2103(b)(6).  If the interrogatories were served by mail, add five (5) days to the response period. CPLR 2103(b)(2).  The day interrogatories are served is not included when calculating the time to respond. Response time starts running the day after service. Gen. Const. L. 20.  Saturdays, Sundays, and legal holidays are included in the count if they do not fall on the last day of the period. If the last day of the period is a Saturday, Sunday, or legal holiday, the response period runs until the end of the next non-holiday business day. Gen. Const. L. 25. “Legal holidays” include those specified in Gen. Constr. L. 24, plus any others designated by the federal or state government. Gen. Const. L. 24.  The response deadline may be altered by court order or stipulation. CPLR 2004; CPLR 3102(b), respectively.

Interrogatories may relate to any matter or information material or necessary to the prosecution or defense of the action and not subject to privilege. CPLR 3131; CPLR 3101. Interrogatories may require (a) an opportunity to examine and copy papers, documents or photographs that are relevant to the answers to the interrogatories, or (b) copies of such papers, documents or photographs. CPLR 3131.

The NewYork Rules do not specify a numerical limit for Interrogatories.  Additionally, the New York rules do not specify requirements for formatting interrogatories, but the general formatting rules for papers apply.

Except in matrimonial actions, no party can serve interrogatories on a party and demand a bill of particulars from the same party. CPLR 3130(1).

In actions based solely on negligence and claiming personal injury, property damage or wrongful death, no party may, without leave of Court, serve written interrogatories on a party and take the oral deposition of the same party. CPLR 3130(1).

Legislation currently referred to the Codes Committee of the New York state legislature would amend New York civil procedure regarding subpoenas, specifically Civil Practice Law and Rules (“CPLR”) Section 3101 (a) (4).  

The justification for the proposed amendment is set forth as follows:  Until 1984, CPLR 3101(a) (4) required disclosure by “any person where the court on motion determines that there are adequate special circumstances.” Courts interpreted that requirement very liberally. In Kenford Co. v. County of Erie, 41 AD.2d 586, 340 N.Y.S.2d 300 (4th Dep’t 1973), a seminal case repeatedly cited with approval by the other Departments, the Court said: “A mere showing by the lawyer that he needs such [nonparty] witness’s pretrial deposition in order to prepare fully for the trial should suffice as a ’special circumstance’.”

By chapter 294 of the Laws of 1984, the statute was amended to its current form, eliminating both the need for a motion and any reference to “special circumstances.” The amendment was made effective September 1, 1984. In support of the amendment, its sponsor stated that, “The proposed amendment would…allow for the discovery of any person who possesses material and necessary evidence. All of the necessary protections to avoid abuses of non-party witnesses presently exist under CPLR 3103 and 3104.” 1984 Legislative Annual, pp. 122-123.

In two notable cases soon thereafter, the First Department, seemingly faced with the question of whether the old or the new statute applied to appeals pending in existing actions, found it unnecessary to decide the point, since even under the old statute, the liberal interpretation in Kenford would permit nonparty disclosure under the circumstances, and there was certainly no suggestion that the Legislature intended by the new statute “to depart from the liberal interpretation heretofore accorded to the ’special circumstances’ standard in the former legislation.” Slabakis v. Drizin, 107 A.D.2d 45, 48, 485 N.Y.S.2d 270 (l”1
Dep’t 1985); see New England Mut. Life Ins. Co. v. Kelly, 113 AD.2d 285, 496 N.Y.S.2d 8 (151 Dep’t 1985).

In Dioguardi v. St. John’s Riverside Hosp., 144 AD.2d 333,334,533 N.Y.S.2d 915 (2nd Dep’t 1988), the Court, affirming denial of a nonparty deposition, said: “It is proper to direct disclosure against a nonparty witness only in the presence of adequate special circumstances [citing a pre-1984 decision]. This requirement survived the1984 amendment to CPLR 3101 (a) (4) (L 1984, ch 294; see, New England Mut. Life Ins. Co. (supra); Slabakis [supra})."

We did not intend for the survival of "special circumstances" after the amendment of 1984. That holding in Dioguardi represents a misreading of the holdings in New England Mut. and Slabakis, and it is directly contrary to the legislative intent of the amendment as reflected in its sponsor's memorandum. While panels of the First and Fourth Departments of the Appellate Division have openly rejected Dioguardi (Schroder v. Consolidated Edison Co. ofN.Y., Inc., 249 AD.2d 69,670 N.Y.S.2d 856 [151 Dep't 1998]; Catalano v. Moreland, 299 AD.2d 881, 750 N.Y.S.2d 209 [4th Dep't 2002]), the Second Department has repeatedly followed its approach (see, e.g., Moran v. McCarthy, Safrath & Carbone, P.c., _ AD.3d_, 2006 N. Y. App. Div. LEXIS 9715; 2006 N.Y. Slip Op. 05926 [2nd Dep't 2006]; Tannenbaum v. Tannenbaum, 8 AD.3d 360,777 N.Y.S.2d 769 [2nd Dep't 2004]; Lanzello v. Lakritz, 287 AD.2d 601, 731 N.Y.S.2d 763 [2nd Dep't 2001];
Bostrom v. William Penn Life Ins. Co., 285 AD.2d 482,727 N.Y.S.2d 160 [2nd Dep't 2001]).

The conflict among departments of the Appellate Division and the need to clarify the intent of the 1984 amendment warrants this bill. Of course, non-party witnesses, like all of those from whom discovery may be sought, are protected from abusive discovery under CPLR 3103 and 3 I 04. There is no intent by this amendment to change statutory or case law concerning discovery of physicians or experts.

For more information regarding subpoenas, please see the New York SmartRules Response to Motion to Quash Subpoena Guides for Bronx, Nassau, New York, Kings, Queens, Richmond and Suffolk Counties.