A Practitioner's Continued Uncertainty: Disclosure from Nonparties

Prior to a 1984 amendment to New York's Civil Practice Law and Rules (CPLR) 3101(a)(4), a party seeking discovery from a nonparty was required to show circumstances. (1) Notwithstanding the removal of that requirement, some Departments of the Appellate Division have continued to use that standard, and the four Departments currently differ on the standard to apply. Most recently, in Kooper v. Kooper, the Second Department highlighted the confusion in this area when it rejected its prior continuing application of the standard in favor of a new loosely-defined standard, not applied by any of the other Departments. (2) Thus, until the Court of Appeals rules--not a certainty in view of the difficulty of getting such a discovery issue reviewed there--practitioners must keep up-to-date on developments in each Department and be prepared to make the requisite showing. Unfortunately, this is merely one small part of the maze of uncertainty that New York practitioners face with respect to basic elements of New York practice and procedure, and which negatively impacts the system. I. PRE-1984 AMENDMENT CASE LAW Disclosure in general is governed by CPLR Article 31. Prior to 1984, CPLR 3101(a)(1) permitted disclosure of any person where the court on motion determined that there were adequate circumstances. (3) Courts interpreting the standard prior to 1984 came to widely varying conclusions. For example, in Gersten v. New York Hospital, the court held that a mere showing that the lawyer needed the nonparty deposition in order to prepare for trial was sufficient. (4) In McDonald v. Gore Mountain Ski Lift Corp., however, the court concluded that examinations of a witness are permitted when it is established that the witness is hostile, or where the witness has special or exclusive knowledge of the facts in issue. (5) II. THE 1984 AMENDMENT In 1984, CPLR 3101(a)(4) was amended (6) to read as it does today: (a) There shall be disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:... (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. (7) The introductory paragraph, which modifies all of the following four subparagraphs, clearly mandates full disclosure of all matter material and necessary. (8) This latter phrase has been interpreted to mean all useful or needful information. (9) Thus, the only requirement applicable to discovery from a nonparty, as opposed to a party, is the notice stating the circumstances or the reasons for the discovery sought from the nonparty. The requirements that the party first seek a court order and establish special circumstances were both eliminated. (10) The sponsor's memorandum for the 1984 amendment stated that: Recent interpretations of the CPLR section 3104(a)(4) have held that it is procedurally incorrect to seek discovery from a non-party witness without first securing a court order. This strict interpretation, contrary to the purpose of the disclosure statutes, places an obstacle in the path of the discovery process. The proposed amendment would eliminate this burden and 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. (11) III. FEDERAL PRACTICE Discovery, in general and from nonparties, is liberal and freely available under federal practice. Interestingly, a June 22, 1984 letter written on behalf of the New York County Lawyers' Association's State Legislation Committee, and approving the 1984 amendment, remarked that it would conform the language of the statute to both [New York] judicial interpretation as well as federal practice. …