Evidence – Discovery – New York

Note: This summary is not intended to be an all inclusive summary of discovery law in New York, but does include basic and other information.

Definitions

Discovery: A procedure designed to allow disclosure of information between Plaintiffs and Defendants. Written questions, oral questioning, document production and admissions requests are generally allowed. Discovery was designed to to prevent trial by ambush.

Interrogatories: Written questions from Plaintiff to Defendant, or from Defendant to Plaintiff. The questions are mailed to the Plaintiff, Defendant or the attorney for response in writing.  The answers or responses are usually due between 20-30 days.

Deposition: A procedure where verbal questions are asked a Plaintiff or Defendant for immediate response. Depositions are usually recorded by a court reporter, who swears the person to tell the truth before questioning begins.

Production of Documents: The method of obtaining documents from the other party relevant to the case such as all documents a party intends to introduce at trial.

Requests for Admissions: Written questions where you request the other party to admit or deny some relevant fact.

Objections: Objections may be made to all discovery questions if the questions are not relevant, or likely to lead to the discovery of relevant evidence.

Civil Procedure Rules: Virtually all states have adopted a version of civil procedure rules which include rules dealing with discovery.
New York Civil Practice Law and Rules

New York has adopted Civil Practice Law and Rules which contain provisions governing discovery. Article 3l contains the applicable rules and sections of discovery.The discovery rules also apply in divorce actions.

Scope of Disclosure: There must be full disclosure of all evidence material and and necessary in the prosecution or defense of an action regardless of proof. Section 3101(a)

Experts: A party shall be required to identify each person whom the other party expects to call as an expert witness at trial. Section 3101(d)

Methods of Obtaining Discovery:Parties may obtain discovery by one or more of the followings methods: depositions upon oral examinations or written questions, written interrogatories, production of documents or things or permission to enter upon land or other property, physical and mental examinations, and requests for admission. Section 3102(a)

Depositions

Where the deposition is to be Taken Within the State: A deposition within the state may be taken when the person to be examined is a party or an officer, or employee of a party within the county in which he resided or has an office for the regular transaction of business in person or where the action is pending. Rule 3110

Before Whom Depositions May Be Taken: Depositions may be taken before any of the following person except an attorney, or employee of an attorney, for a party or prospective party and except a person who would be qualified to act as a juror because of interest in the event or consanguinity or affinity to a party: within a state, a person authorized by the law of the state to administer oaths.

Without the state, but within the United States a person authorized to take acknowledgments of deeds outside of the state by the real property law of the state or to administer oaths by the laws of the United States or of the place where the deposition is taken.

In a foreign country, any diplomatic or consular agent or representative of the United States. Rule 3113

Production

Any party may serve upon another party a request to produce certain documents, not privileged, to be inspected and copied. Rule 3120

Physical and Mental Examination of Persons

When the mental or physical condition (including the blood group) of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or control. Section 3121

Requests for Admissions

At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any paper or documents. Section 3123

Compel Discovery

If a person, without having made timely objections, fails to appear at an examination for questioning or fails to answer any question propounded upon oral or written depositions or interrogatories or to produce a thing as provided by rule 3111 or fails to permit examination or inspection of property or things as provided by rule 3120, the affected party may apply to the court to compel disclosure. Rule 3124

Domestic Actions Discovery Notes

If you require extra time to respond to discovery, you should ask the other side for an extension in writing.  It may also be necessary to enter an order granting the extension to protect your rights.

Discovery questions are limited in number so select the most important questions to ask the other side. Don’t waste your requests writing questions that you already know the answer to.