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EXHIBIT A
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NY CLS CPLR § 3103
Current through 2023 released Chapters 1-607
New York Consolidated Laws Service > Civil Practice Law And Rules (Arts. 1 — 100) > Article
31 Disclosure (§§ 3101 — 3140)
§ 3103. Protective orders.
(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of
any person from whom or about whom discovery is sought, make a protective order denying, limiting,
conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent
unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the
courts.
(b) Suspension of disclosure pending application for protective order. Service of a notice of motion
for a protective order shall suspend disclosure of the particular matter in dispute.
(c) Suppression of information improperly obtained. If any disclosure under this article has been
improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion,
may make an appropriate order, including an order that the information be suppressed.
History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1993, ch 98, § 5, eff Jan 1, 1994; L 2013, ch 205, § 1, eff July 31,
2013.
Annotations
Notes
Editor’s Notes:
Laws 2013, ch 205, § 2, eff July 31, 2013, provides as follows:
§ 2. This act shall take effect immediately and shall apply to all actions pending on such effective date or
commenced on or after such effective date.
Derivation Notes:
Earlier statutes and rules: CPA §§ 291, 294; RCP 124, 133; CCP §§ 873, 894, 896–898, 910.
2013 Recommendations of the Advisory Committee on Civil Practice:
The Committee recommends an amendment to the language of CPLR § 3103(a) to expand the delineated persons
who may seek the remedy of a protective order in regard to the use of discovery devices such as a subpoena for
records.
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Presently the statute contemplates protective orders made by the court on its own motion or on motion of a party or
a person from whom discovery is sought. Not addressed is a person about whom records are being subpoenaed
from either a party or another non-party. By way of example, if an accountant is subpoenaed to produce the records
of clients who are not parties to the litigation, it is unclear under the present statute whether the non-party clients
would have standing to object to the production of their records.
It would be an unwarranted anomaly for such non-parties to have less of a right to protect their records than those
persons presently delineated in the statute.
It should be noted that it is not the purpose of this amendment to change existing case law as to whether or not a
third party has a protectable interest in certain records. See, Norkin v. Hoey , 181 A.D.2d 248, 252 (1st Dept., 1992)
(bank records); People v. DiRaffaele , 55 N.Y.2d 234 (1982) (telephone records). This measure would solely
provide a procedural mechanism by which a person, whose information is contained in the records sought, may
object to the subpoena.
Advisory Committee Notes:
Subd (a) of this section is stated as broadly as possible. It includes the new “expense” provision in rule 30(b),
recommended by the Federal rules advisory committee. Report of the Advisory Committee on Federal Rules 24, 26
(May 1954); id. at 35, 36–37 (Oct. 1955); see also Ky Prac & Serv, R Civ P 30.02 (Baldwin 1956); La Rev Stat §
13:3762 (Supp 1954); Minn R Civ P 30.02, 232 Minn Rep (1951). Under this subdivision the following matters,
among others may be regulated:
1. the time, order, and place of taking depositions;.
2. the number and names of persons to be questioned;.
3. the time within which the information must be obtained;.
4. the number, kinds of questions, or specific questions which may be asked;.
5. the disclosure device or combination of devices which may be used; and.
6. the matters which may or may not be inquired into.
There is no limit but the needs of the parties on the nature of the order or the conditions of discovery. The following
orders are illustrative:
1. examination shall be held with no one present but the parties, officers of the court and counsel; information so
obtained shall not be revealed, or, after being sealed, the deposition shall be opened only by order of the court;.
2. trade or business secrets, secret processes or research, or customer or stockholder lists need not be disclosed;.
3. parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened
as directed by the court;.
4. costs of transcription shall be paid by one or more of the parties or apportioned among them;.
5. in cases of disparity in economic resources, where such resources are being used to prevent another party from
properly participating in the case, the party examining shall forego the examination or pay the expenses of any or all
of the other parties or witnesses, including attorney’s fees reasonably incurred for representation at such
examinations;.
6. physical examination of the property, person, documents, or records of a party or a witness shall be conducted at
specified times, under specified conditions and in a specified manner;.
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7. physical examination of property, person, documents, or records of a party or a witness shall be conducted using
specified technical devices such as the motion picture camera, sound recording equipment, x-rays and
spectroscope;.
8. where an examination requires the destruction of, or a substantial change in, property, experts appointed by all
parties or the court shall be permitted to co-operate and be present at such an examination; and.
9. where it appears that a witness is under the control of one of the parties, such party shall bring the witness within
the state so that his deposition may be taken here.
In order to emphasize the court’s broad discretion under this subdivision the committee refused to adopt such
provisions as those requiring payment of counsel fees where depositions are taken more than a specified number
of miles from the court (13 Del Code Ann, R Civ P 30(h) (1953); Pa Stat Ann tit 12, R Civ P 4008 (Purdon Supp
1954)), specifying the maximum number of days to be devoted to depositions (see Comment, 59 Yale LJ 117, 133
(1949)), or limiting the number of interrogatories. Mass Ann Laws c. 231, § 61 (1955).
Subd (b) of this section consists of the last two sentences of Federal rule 30(d), with minor changes. The
suspension would be automatic.
Subd (c) of this section is based on RCP 133 which applied only to depositions taken outside the state. Under rule
133, if the objection was not made before trial it was deemed waived because another examination could not then
be taken. This subdivision should be read with CPLR rules 3112 and 3115.
Amendment Notes:
2013. Chapter 205, § 1 amended:
Sub (a) by adding the matter in italics.
Commentary
PRACTICE INSIGHTS:
COMPARING STAYS OF DISCLOSURE
By David L. Ferstendig, Law Offices of David L. Ferstendig, LLC
General Editor, David L. Ferstendig, Esq.
INSIGHT
Under CPLR 3103, a motion for a protective order only stays the particular discovery in dispute. In contrast, a
CPLR 3214 (b) stay of disclosure, which applies to the service of a motion to dismiss or for summary judgment, is a
complete stay, with a limited exception relating to a service defense. It stays all discovery in the action, “unless the
court orders otherwise,” thereby abrogating the stay. Unfortunately, over the years, attorneys have used the
automatic stay provision as a mechanism to delay discovery and the case. Perhaps this is what has provoked
judges and courts to adopt blanket rules eliminating the stay rather than deal with the issue on a case-by-case
analysis. In those courts, the burden shifts to the party seeking the stay to argue that factors such as judicial
economy and the like militate in favor of the stay.
ANALYSIS
Motion for a protective order only stays discovery of the particular matter in dispute.
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When a party moves for a protective order under CPLR 3103, the subject matter of the motion only, the disputed
discovery, is stayed pending the outcome of the motion. This is logical, of course, since permitting that discovery go
forward as is might defeat the purpose of the motion. Any other outstanding discovery requests require a timely
response.
Motion to dismiss or for summary judgment stays all discovery “unless the court orders otherwise.”
CPLR 3214(b) provides that dispositive motions, such as motions to dismiss, motions for summary judgment, and
motions for summary judgment in lieu of complaint, except a motion relating to a service defense, stay discovery
“unless the court orders otherwise.” The wording of the statute suggests that a stay is in effect unless, a judge in a
particular case decides otherwise. Nevertheless, certain judges and entire courts appear to have shifted the burden
to the party seeking the stay. See, e.g., Rules of the Commercial Division of the Supreme Court, 22 NYCRR
202.70, Rule 11(d) (“The court will determine, upon application of counsel, whether discovery will be stayed,
pursuant to CPLR 3214(b), pending the determination of any dispositive motion”).
OMITTING INFORMATION OTHER THAN EXPERT’S IDENTITY IN MEDICAL, DENTAL OR PODIATRIC
MALPRACTICE ACTIONS
By David L. Ferstendig, Law Offices of David L. Ferstendig, LLC
General Editor, David L. Ferstendig, Esq.
INSIGHT
The Second Department (recently joined by the Third Department) has correctly recognized that in view of
numerous technological advancements, particularly the internet, it is futile for plaintiff’s counsel to try to conceal the
expert’s identity in medical, dental and podiatric malpractice actions. As CPLR 3101(d)(1)(i) provides, plaintiff’s
counsel should be permitted only to omit the name of the expert, while providing all of the other information required
by the statute. An even better and more realistic result would be for the Legislature to repeal the exception totally
and make expert disclosure in all areas uniform.
ANALYSIS
Statute permits plaintiff to omit name of expert only.
A party may request certain information concerning experts retained by other parties, including the identity of the
expert. CPLR 3101(d)(1)(i). In medical, dental and podiatric malpractice actions, however, a party may respond to
a request by omitting the names of the experts, but must disclose all other information concerning such experts.
Arguments have been made as to whether a party can also omit reference to other information about the expert,
particularly the expert’s qualifications. These arguments are based on the proposition that with the expansion of
computer technology, it is relatively easy for attorneys and their staff to determine the identity of an expert based on
the qualifications provided. Courts have come down on both sides of this issue, and fashioned various remedies
ranging from full disclosure of the expert’s qualifications to the withholding of information that would lead to
revealing the expert’s identity.
Second Department requires plaintiff to establish that expert will be subjected to intimidation if expert’s
identity were revealed.
The Appellate Division for the Second Department ruled that a party must provide all expert information except for
the expert’s identity, as expressly set forth in the statute. Recognizing that the technological changes point “to the
futility of attempting to conceal the identity of expert witnesses in medical malpractice cases,” the court overruled its
earlier decision in Jasopersaud v. Tao Gyoun Rho, 169 A.D.2d 184, 572 N.Y.S.2d 700 (2d Dep’t 1991). The court
held that to obtain relief under the statute, the plaintiff must provide a factual showing of a concrete risk that a
prospective expert medical witness would be subjected to intimidation or threats if the expert’s name were revealed
before trial. The Thomas court, in essence, shifted the burden to the plaintiff to establish that the expert will be
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“subjected to intimidation” if the expert’s identity were revealed, before the court would consider limiting the
disclosure of the expert’s qualifications. Thomas v. Alleyne, 302 A.D.2d 36, 45-46, 752 N.Y.S.2d 362, 369-370 (2d
Dep’t 2002). See also Allston-Rieder v. Schwartzman, 2005 N.Y. Misc. LEXIS 8445 (Sup. Ct. N.Y. Co. 2005)
(“However, I believe, as does the Thomas court, that ‘this technological change points to the futility of attempting to
conceal the identity of expert witnesses in medical malpractice cases’ ( 302 A.D.2d at 43); Instead of being forced
to play the game of ‘In how few qualifications can I name your expert?’, all parties should be required to give full
disclosure of each expert's qualifications to help promote settlement or to prepare for trial. Short of such full
disclosure by all parties, plaintiffs seeking to avoid disclosing in ‘reasonable detail’ the expert qualification
information to which defendants are ‘presumptively entitled’ under CPLR 3101(d)(1)(I), should be required to meet
the two-part Thomas test.”).
Third Department joins Second Department.
In Kanaly v. DeMartino, 162 A.D.3d 142, 77 N.Y.S.3d 234 (3d Dep’t 2018), the Third Department joined the Second
Department, rejecting its earlier standard, reasoning that permitting a party to withhold the expert’s qualifications,
“had devolved into a quagmire for trial courts exercising oversight of disclosure; the standard has encouraged the
withholding of information and the filing of motions by both sides, and requires determinations of what information
would reveal the identity of each particular expert on a case-by-case basis…. [I]n most cases our current standard
would permit a party to withhold vast amounts of information and reveal so little about its expert that the opposing
party would be unable to adequately prepare for trial. … Inasmuch as this state's expert disclosure statute is
already the most restrictive in the nation, there is no reason for this Court to continue to interpret the statute in a
way that permits parties to severely limit the amount of information they provide regarding their expert witnesses.”
Id. at 152-53.
Fourth Department disagrees.
In Thompson v. Swiantek, 291 A.D.2d 884, 736 N.Y.S.2d 819 (4th Dep’t), rearg. denied, 742 N.Y.S.2d 180 (4th
Dep’t 2002) the Fourth Department carved out its own rule, permitting a responding party to withhold information
concerning the expert’s medical school education, and the location of his or her internships, residences and
fellowships.
Notes To Decisions
I.Under CPLR
A.In General
1.Generally
2.Appeal and error
3.Conduct of disclosure
4.Construction and applicability
5.Jurisdiction
6.Motion practice, generally
7.—Bill of particulars as contingency
8.—Evidence and burden of proof
9.—Specificity
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10.Priority of disclosure
11.Suppression of evidence
12.Suspension of disclosure
13.Taxing of costs
B.Particular Circumstances or Conditions as Warranting Protective Orders
14.Generally
15.Accounting matters
16.AIDS/HIV concerns
17.Attorney’s presence at issue
18.Burden of proof
19.Corporate employees as witnesses
20.Counterclaim allegations
21.Damages at issue, generally
22.—Valuation matters
23.DNA testing
24.Expenses of discovery
25.Incapacity or disability, generally
26.—Infancy
26.5.—COVID-19 precautions
27.Inconvenience
28.Interpreter
29.Issue joined and ready for trial
30.Issue preclusion; law of the case
31.Multiple disclosures
32.Multiple parties
33.Multiple witnesses
34.Non-existence or destruction of documents or other physical evidence
35.Non-prejudicial error
36.Non-residents; out-of-state disclosures
37.“Overly broad” disclosure demands
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38.Partnership records as subject of disclosure
39.Photographs as subject of disclosure
40.Privacy concerns
41.Privileged matter, generally
42.—Attorney-client privilege, generally
43.— —Attorney for insurer
44.— —Legal malpractice
45.— —Paralegal involved
46.—Grand jury minutes
47.—Law enforcement records, generally
48.— —FBI materials
49.—Physician-patient privilege, generally
50.— —AIDs-related information
51.— —Food and Drug Administration (FDA) records
52.— —Hospital records
53.— —Nursing records
54.— —Psychiatric information
55.—Tax records
56.—Waiver of privilege
57.—Youthful offender records
58.Relevancy and materiality, generally
59.—Accounting matters
60.—Arbitration proceedings
61.—Article 78 proceedings
62.—Bank records
63.—Building construction claims
64.—Defamation, generally
65.— —Libel
66.—Employment matters
67.—Equipment leasing actions
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68.—Infant plaintiffs
69.—Insurance, generally
70.— —Automobile insurance
71.—Legal malpractice actions
72.—Matrimonial actions
73.—Medical malpractice actions, generally
74.— —Psychiatrist as defendant
75.—National security matters
76.—Probate proceedings
77.—Products liability actions
78.—Securities matters; stockholders
79.—Slip and fall cases
80.—Tax records at issue
81.—Wrongful death cases
82.Self-incrimination
83.Service of notice, generally
84.—Subpoena
85.Timeliness; laches
86.Trade secrets and the like
87.Transcription at issue, generally
88.—Videotaping
89.Unnecessary annoyance
90.Generally
91.Open commission
92.Terms and conditions generally
93.Payment of fees, costs and expenses as conditions of order
94.Modification or vacation
95.Review
B.Motion to Vacate or Modify Notice
96.Generally
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97.Scope of rule
98.Power of court to alter notice
99.Ex parte orders
100.Burden of moving and proof
101.Venue of motion
102.Time of motion
103.Affidavit
104.—Who may make affidavit
105.Grounds generally for vacation or modification
106.—Neglect to serve bill of particulars
107.Defects in form of notice
108.Technical irregularity
109.Merits
110.Sufficiency of pleading
111.Amendment of pleading
112.Waiver of objections
113.Possible incrimination of party to be examined
114.Order vacating or modifying notice
115.Effect of prior adjudications
116.Second application after vacation of first examination
117.Municipal corporations
118.Negligence cases
119.Witness as entitled to move to vacate or modify notice
120.Stay of examination
C.Suppression of Information Improperly Obtained
121.Generally
122.Grounds for suppression
123.Time for motion to suppress
124.Irregularities and waiver
125.Exclusion of parts of deposition
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126.Impeachment of witness
127.Return of witness to state
—272.——Medical examiner, coroner, pathologist and the like
I. Under CPLR
A. In General
1. Generally
Court has authority under CLS CPLR § 3103(c) to impose any order, including order of dismissal, for disclosure
abuses. Lipin v Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644 N.E.2d 1300, 1994 N.Y. LEXIS 3398 (N.Y. 1994).
This section provides the procedure whereby a party may protect himself against any claimed impropriety or abuse
of a discovery notice issued under Rule 3120. Coffey v Orbachs, Inc., 22 A.D.2d 317, 254 N.Y.S.2d 596, 1964 N.Y.
App. Div. LEXIS 2453 (N.Y. App. Div. 1st Dep't 1964).
The only permissible method for challenging any disclosure device is to move for a protective order under the
provisions of CPLR 3103. Gambino v St. Mary's Hospital, 37 A.D.2d 903, 325 N.Y.S.2d 310, 1971 N.Y. App. Div.
LEXIS 3128 (N.Y. App. Div. 4th Dep't 1971).
Where plaintiffs were directors of defendant corporation at the time that they commenced derivative action, they
were entitled to examine individual defendants before trial. Tansman v Community School Board, 53 A.D.2d 866,
385 N.Y.S.2d 494, 1976 N.Y. App. Div. LEXIS 13698 (N.Y. App. Div. 2d Dep't 1976).
To be immune from discovery, party must demonstrate that material sought was prepared exclusively for litigation.
Oppedisano v New York Mut. Underwriters, 111 A.D.2d 452, 488 N.Y.S.2d 512, 1985 N.Y. App. Div. LEXIS 51539
(N.Y. App. Div. 3d Dep't 1985).
Fourth party plaintiff’s failure to move for protective order based upon nonexistence of requested documents
immediately upon receipt of notice for discovery and inspection creates inference that documents were discarded
after they had been requested; moreover, failure to offer reasonable excuse for absence of documents prior to
motion to dismiss fourth party complaint indicates that fourth party plaintiff engaged in willful, contumacious and
elusive conduct with respect to fourth party defendant’s discovery rights; accordingly, dismissal of fourth party
complaint is warranted. Anteri v NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d 435, 1986 N.Y. App. Div. LEXIS
52978 (N.Y. App. Div. 2d Dep't 1986).
Special Term made unwarranted order concerning resumption of pretrial deposition of plaintiffs in medical
malpractice action by conditioning resumption on defendant hospital’s complying with plaintiffs’ request to identify
persons named in certain hospital records, and to state whether persons were still hospital employees, since no
such request had been made by plaintiffs; thus, order impermissibly empowered plaintiffs to deny disclosure to
hospital by never submitting request. Holland v Presbyterian Hospital in New York, 122 A.D.2d 750, 506 N.Y.S.2d
56, 1986 N.Y. App. Div. LEXIS 59278 (N.Y. App. Div. 1st Dep't 1986).
In negligence action, defendants’ failure to timely move for protective order did not constitute waiver of their right to
subsequently object to certain discovery demands on grounds that items either were privileged or constituted
attorney’s work product or material prepared for litigation. D'Alessio v Nabisco, Inc., 123 A.D.2d 816, 507 N.Y.S.2d
431, 1986 N.Y. App. Div. LEXIS 60948 (N.Y. App. Div. 2d Dep't 1986).
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In matrimonial action, Special Term was not constrained to deny husband’s request for pretrial deposition of wife
with regard to her grounds for annulment or divorce, since there is no general prohibition against disclosure
concerning merits of matrimonial actions, and restrictions on such disclosure are better left to individual
determination; accordingly, matter should be remitted to Supreme Court for exercise of its discretion to decide
wife’s motion for protective order based on circumstances presented on such motion. Semon v Saridis, 125 A.D.2d
882, 510 N.Y.S.2d 236, 1986 N.Y. App. Div. LEXIS 63071 (N.Y. App. Div. 3d Dep't 1986).
Plaintiff’s failure to request protective order did not constitute absolute bar to right to object to disclosure of items
where disclosure request was palpably improper. Starling v Warshowski, 148 A.D.2d 441, 538 N.Y.S.2d 593, 1989
N.Y. App. Div. LEXIS 2468 (N.Y. App. Div. 2d Dep't 1989).
Defendant’s motion for protective order, made in afternoon of day that his pleadings were unconditionally struck,
was properly denied. Helms v Gangemi, 265 A.D.2d 203, 696 N.Y.S.2d 441, 1999 N.Y. App. Div. LEXIS 10304
(N.Y. App. Div. 1st Dep't 1999).
Trial court properly, upon reargument, conditionally granted an injured customer’s motion to strike the store owner’s
answer for failure to comply with discovery demands, precluded it from offering any evidence at trial, and denied its
motion for a protective order because the owner’s repeated failure to comply with discovery demands justified the
imposition of a conditional order of preclusion. Kayantas v Restaurant Depot, LLC, 173 A.D.3d 718, 102 N.Y.S.3d
295, 2019 N.Y. App. Div. LEXIS 4433 (N.Y. App. Div. 2d Dep't 2019).
Enactment of Civil Practice Law and Rules §§ 3101 and 3103 did not change rule of former practice that state was
not amenable to pretrial examination in anti-trust cases. State v Boar's Head Provisions Co., 46 Misc. 2d 759, 260
N.Y.S.2d 418, 1965 N.Y. Misc. LEXIS 1933 (N.Y. Sup. Ct. 1965).
Administratrix waived the doctor-patient privilege pertaining to the decedent’s past medical conditions related to his
cardiac condition and abdominal pains because the essence of the administratrix’s wrongful death medical
malpractice claim was an alleged failure to evaluate and monitor the decedent’s cardiac condition or to treat him for
abdominal pain, and defendants were entitled to those related records; since the action for wrongful death medical
malpractice action sought damages of a pecuniary nature, the administratrix waived any claim of privacy or privilege
with respect to the financial affairs of the decedent and thus defendants were entitled to discovery of all matters
pertaining to economic loss, including the decedent’s income tax returns. Friedman v Frank, 835 N.Y.S.2d 872, 16
Misc. 3d 321, 237 N.Y.L.J. 104, 2007 N.Y. Misc. LEXIS 3310 (N.Y. Sup. Ct. 2007).
2. Appeal and error
An open commission to examine witnesses should never be granted except under peculiar circumstances and not
upon the motion of the plaintiff without the strongest and most necessary reason. Einstein v General Electric Co., 9
A.D. 570, 41 N.Y.S. 808, 1896 N.Y. App. Div. LEXIS 2609 (N.Y. App. Div. 1896).
In view of questionable merit of appeal and imminence of trial, stay would not be granted pending determination of
appeal from granting defendant’s motion for protective order. Messner v Messner, 42 A.D.2d 889, 347 N.Y.S.2d
589, 1973 N.Y. App. Div. LEXIS 3585 (N.Y. App. Div. 1st Dep't 1973).
In a personal injury action, defendant manufacturing company’s motion to vacate the infant plaintiff’s notice for
pretrial examination was properly denied, although plaintiff’s counsel would be required to pay a sum of money to
defendant, inasmuch as the trial court should have permitted the discovery to proceed conditionally in view of the
persistent dilatory conduct of plaintiff’s counsel. Knauer v Wade Mfg. Co., 92 A.D.2d 562, 459 N.Y.S.2d 312, 1983
N.Y. App. Div. LEXIS 16794 (N.Y. App. Div. 2d Dep't 1983).
Special Term’s orders limiting plaintiff’s pretrial deposition testimony in medical malpractice action were appealable
where court made no ruling on particular questions and where orders derived from formal notices of motion and
were supported by full record; under such circumstances, orders did not constitute rulings directed to examination
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before trial so as to be nonappealable. Holland v Presbyterian Hospital in New York, 122 A.D.2d 750, 506 N.Y.S.2d
56, 1986 N.Y. App. Div. LEXIS 59278 (N.Y. App. Div. 1st Dep't 1986).
Appellate Division could review propriety of discovery request for plaintiffs’ federal income tax returns, despite
plaintiffs’ failure to make timely motion for protective order, since discovery request was palpably improper as it
sought information of confidential and private nature which did not appear to be relevant to issues in case.
Grossman v Lacoff, 168 A.D.2d 484, 562 N.Y.S.2d 724, 1990 N.Y. App. Div. LEXIS 15416 (N.Y. App. Div. 2d Dep't
1990).
Portion of order that denied plaintiffs’ cross motion for protective order was not appealable where it was, in effect,
untimely motion for reargument of earlier order directing plaintiffs to appear for deposition and mental examination.
Smith by Smith v Parkchester Apts. Co., 240 A.D.2d 223, 658 N.Y.S.2d 880, 1997 N.Y. App. Div. LEXIS 6149 (N.Y.
App. Div. 1st Dep't 1997).
In tenants’ action to recover rent overpayment, order granting landlords’ motion in limine to restrain tenants from
questioning jurors regarding certain matters during voir dire was in nature of ruling made during trial and thus was
not appealable. Bergen Tile, Inc. v Robbins Fulton Corp., 251 A.D.2d 524, 673 N.Y.S.2d 920, 1998 N.Y. App. Div.
LEXIS 7479 (N.Y. App. Div. 2d Dep't 1998).
On appeal from grant of protective order which quashed subpoena and notice of deposition served by medical
malpractice plaintiffs on nonparty pediatrician who attended delivery of infant plaintiff, issue as to applicability of
CLS CPLR § 3101(a)(3) could be reviewed although it was raised for first time on appeal, because it was issue of
law which appeared on face of record and could not have been avoided if raised at proper juncture. Calvao v St.
John's Riverside Hosp., 261 A.D.2d 350, 689 N.Y.S.2d 185, 1999 N.Y. App. Div. LEXIS 4483 (N.Y. App. Div. 2d
Dep't 1999).
Because a county department of social services did not comply with a law guardian’s discovery demands, serve
written objections identifying a defect, or move for a protective order, pursuant to N.Y. C.P.L.R. 3112, 3103(a),
3120, N.Y. Fam. Ct. Act § 1038(b), the law guardian was entitled to compel the demanded disclosure. Matter of
John H., 56 A.D.3d 1024, 868 N.Y.S.2d 790, 2008 N.Y. App. Div. LEXIS 8706 (N.Y. App. Div. 3d Dep't 2008).
Trial court did not abuse its discretion when it denied discovery relief requested by plaintiffs and sua sponte ordered
a protective order as to certain discovery requests because the trial court had authority to determine the terms and
provisions of discovery and to prevent abuse by the use of protective orders. Bligen v Markland Estates, Inc., 6
A.D.3d 371, 773 N.Y.S.2d 906, 2004 N.Y. App. Div. LEXIS 3854 (N.Y. App. Div. 2d Dep't 2004).
Court did not improvidently exercise its discretion in granting that branch of the hospital's motion for leave to
reargue because the court overlooked that the training courses and related written materials described at the
deposition included materials pertaining to the years 2010 and 2013 in addition to the year 2009; the court
improvidently exercised its discretion in amending the preclusion order to provide that the training materials for the
year 2010 were not subject to discovery. Hackshaw v Mercy Med. Ctr., 139 A.D.3d 798, 33 N.Y.S.3d 297, 2016
N.Y. App. Div. LEXIS 3567 (N.Y. App. Div. 2d Dep't 2016).
Trial court erred when it granted in part a protective order regarding certain document demands by debtors in an
action by the bank to collect on allegedly defaulted debt obligations and counterclaims asserting that the lending
scheme was fraudulent, as the bank should have conducted an in camera review to determine whether the
documents contained confidential supervisory information for purposes of the bank privilege. Manufacturers &
Traders Trust Co. v Client Server Direct, Inc., 156 A.D.3d 1364, 68 N.Y.S.3d 280, 2017 N.Y. App. Div. LEXIS 9043
(N.Y. App. Div. 4th Dep't 2017).
3. Conduct of disclosure
Where plaintiff, in personal injury action, sought only to take corporate defendant’s oral deposition and had not
made any request for specific documents, it would have been premature to direct that discovery proceedings take
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place in Michigan and, therefore, special term properly denied defendant’s motion requesting that any discovery
against it be conducted at its corporate headquarters in Michigan. Bihari v Upjohn Co., 58 A.D.2d 569, 395
N.Y.S.2d 220, 1977 N.Y. App. Div. LEXIS 12588 (N.Y. App. Div. 2d Dep't 1977).
Defendant could not rely on CPLR § 3103(b) to relieve it from its obligation of being deposed where the motion to
stay disclosure, scheduled for the next day, was not purportedly brought for the purpose of obtaining a protective
order pursuant to that section nor was the supporting affidavit based in former substance upon the grounds set forth
in that section for obtaining a protective order, and additionally, defendant’s assertion that it relied in good faith
upon the automatic stay provisions was somewhat if not totally undercut by the fact that a portion of the proposed
order to show cause submitted contained a specific stay pending determination of the motion but that provision was
stricken by the Justice granting the order. Spancrete Northeast, Inc. v Travelers Indem. Co., 99 A.D.2d 623, 472
N.Y.S.2d 177, 1984 N.Y. App. Div. LEXIS 16858 (N.Y. App. Div. 3d Dep't 1984).
It was not improper for trial court to shift burden of paying interpreter’s cost from examining party to examined party,
even though CLS CPLR § 3114 provides that if witness does not understand English, examining party must provide
translation, since CLS CPLR § 3103(a) gives court broad discretion to regulate “use of any disclosure device.” Ozen
v Yilmaz, 181 A.D.2d 666, 580 N.Y.S.2d 468, 1992 N.Y. App. Div. LEXIS 3006 (N.Y. App. Div. 2d Dep't 1992).
In action for injuries sustained when plaintiff ingested glass fragments allegedly resulting from disintegration of neck
of glass bottle from which he was drinking, court properly limited photography of bottle testing process, which
included measurement and visual examination of glass, to periods before and at conclusion of testing process,
where bottle was not to be destroyed, and plaintiffs were permitted to have representative present at all stages of
testing to ensure its integrity. Poyer v Wegman's, 242 A.D.2d 843, 662 N.Y.S.2d 153, 1997 N.Y. App. Div. LEXIS
8829 (N.Y. App. Div. 3d Dep't 1997).
Court properly directed plaintiff wife in divorce action to comply with provisions of CLS CPLR § 3120(2) in obtaining
disclosure of any business, partnership, or corporation information relating to husband’s noncontrolling interest in
such companies. MacKinnon v MacKinnon, 245 A.D.2d 690, 665 N.Y.S.2d 123, 1997 N.Y. App. Div. LEXIS 12576
(N.Y. App. Div. 3d Dep't 1997).
In declaratory judgment action involving plaintiff disability insurer and simple claim for insurance by defendant
insured, court properly directed out-of-state nonparty witness depositions sought by plaintiff to be conducted by
videoconferencing at plaintiff’s expense, where defendant had supplied voluminous discovery but plaintiff refused to
file note of issue and instead repeatedly waited until eve of court conferences before sending out copious new
discovery demands, including more than 50 nonparty witness depositions of individuals and entities throughout
United States, including defendant’s former clients, supervisors and business associates. Provident Life & Cas. Ins.
Co. v Brittenham, 283 A.D.2d 629, 725 N.Y.S.2d 84, 2001 N.Y. App. Div. LEXIS 5484 (N.Y. App. Div. 2d Dep't
2001).
Record supported the supreme court’s determination to deny plaintiffs’ request for an extension of time because, by
filing the motion for a protective order as to certain information, plaintiffs were not relieved of the obligation to
otherwise comply with the court’s August 21, 2015, order. Kim & Bae, P.C. v Lee, 173 A.D.3d 990, 103 N.Y.S.3d
530, 2019 N.Y. App. Div. LEXIS 4973 (N.Y. App. Div. 2d Dep't), app. dismissed, 173 A.D.3d 993, 100 N.Y.S.3d
888, 2019 N.Y. App. Div. LEXIS 4976 (N.Y. App. Div. 2d Dep't 2019).
A party will not be permitted to take an examination before trial in longhand, rather than by a qualified stenographer,
since CPLR R 3113(c) provides that the examination “shall proceed as permitted in the trial of actions in open
court”, and to permit a violation of this practice would be an “unreasonable annoyance” (CPLR § 3103). Gammarata
v Bill's Garage, Inc., 40 Misc. 2d 1081, 244 N.Y.S.2d 832, 1963 N.Y. Misc. LEXIS 1337 (N.Y. Dist. Ct. 1963).
Pursuant to CPLR 3103 (subd [a]), a court may order that a stenographic record be taken of a psychiatric
examination predicated upon CPLR 3121 in order to protect the examined party from improper questioning during
the examination and possibly to aid in its preparation for cross-examination of the psychiatrist; the stenographic
reporter should be stationed outside of the examining room and the examined party is required to provide the
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psychiatrist with a copy of the transcript. Murray v Specialty Chemicals Co., 100 Misc. 2d 658, 418 N.Y.S.2d 748,
1979 N.Y. Misc. LEXIS 2522 (N.Y. Sup. Ct. 1979).
In a personal injury negligence action by claimant, who was allegedly burned through the negligence of defendant
while an inmate in a State correctional facility, a motion for an order directing the Department of Correctional
Services to produce certain prisoners for the purposes of interview and examination before trial would be granted,
where the named inmates allegedly witnessed the occurrence upon which the claim was based and where the
claimant had reason to believe that said inmates would give statements contradicting those made by correction
officers; however, the court would not make any order tending to interfere with proper security in the correctional
facilities such as ordering correction officers not to interfere with the discovery process. Additionally, the court would
consider that the order to be entered upon the motion would be the practical equivalent of a subpoena. Sebastiano
v State, 112 Misc. 2d 1030, 447 N.Y.S.2d 987, 1982 N.Y. Misc. LEXIS 3234 (N.Y. Ct. Cl. 1982), aff'd, 92 A.D.2d
966, 460 N.Y.S.2d 841, 1983 N.Y. App. Div. LEXIS 17388 (N.Y. App. Div. 3d Dep't 1983).
Requiring a defendant to turn over surveillance materials upon a plaintiff’s demand and prior to depositions need
not result in any undue prejudice, such as tailored testimony by the plaintiff, since a defendant may seek an
appropriate protective order pursuant to CPLR 3103(a). Falk v Inzinna, 299 A.D.2d 120, 749 N.Y.S.2d 259, 2002
N.Y. App. Div. LEXIS 10023 (N.Y. App. Div. 2d Dep't 2002).
Because a landlord failed to demonstrate that compliance with his tenant’s disclosure request, in the landlord’s use
holdover proceeding, would be unduly burdensome, prejudicial, or dilatory, and the landlord did not object to
disclosing any document requested, and did not cross-move under N.Y. C.P.L.R. 3103 for an order of protection,
the tenant’s N.Y. C.P.L.R. 408 motion seeking certain documents and to depose the landlord’s wife in order to
ascertain the landlord’s good-faith intention to use the building as a single-family home was granted as: (1) the
information sought was exclusively in the landlord’s knowledge; (2) the tenant did not have to accept the landlord’s
bare assertions at face value; and (3) the tenant had a right to disclosure to assess the true purpose behind the
landlord’s bare assertions and conduct. Smilow v Ulrich, 806 N.Y.S.2d 392, 11 Misc. 3d 179, 2005 N.Y. Misc.
LEXIS 2710 (N.Y. Civ. Ct. 2005).
In a contested accounting proceeding related to a decedent’s revocable trust, ob
Preview
FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/14/2023 EXHIBIT A FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/14/2023 NY CLS CPLR § 3103 Current through 2023 released Chapters 1-607 New York Consolidated Laws Service > Civil Practice Law And Rules (Arts. 1 — 100) > Article 31 Disclosure (§§ 3101 — 3140) § 3103. Protective orders. (a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. (b) Suspension of disclosure pending application for protective order. Service of a notice of motion for a protective order shall suspend disclosure of the particular matter in dispute. (c) Suppression of information improperly obtained. If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed. History Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1993, ch 98, § 5, eff Jan 1, 1994; L 2013, ch 205, § 1, eff July 31, 2013. Annotations Notes Editor’s Notes: Laws 2013, ch 205, § 2, eff July 31, 2013, provides as follows: § 2. This act shall take effect immediately and shall apply to all actions pending on such effective date or commenced on or after such effective date. Derivation Notes: Earlier statutes and rules: CPA §§ 291, 294; RCP 124, 133; CCP §§ 873, 894, 896–898, 910. 2013 Recommendations of the Advisory Committee on Civil Practice: The Committee recommends an amendment to the language of CPLR § 3103(a) to expand the delineated persons who may seek the remedy of a protective order in regard to the use of discovery devices such as a subpoena for records. Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 2 of 124 NY CLS CPLR § 3103 Presently the statute contemplates protective orders made by the court on its own motion or on motion of a party or a person from whom discovery is sought. Not addressed is a person about whom records are being subpoenaed from either a party or another non-party. By way of example, if an accountant is subpoenaed to produce the records of clients who are not parties to the litigation, it is unclear under the present statute whether the non-party clients would have standing to object to the production of their records. It would be an unwarranted anomaly for such non-parties to have less of a right to protect their records than those persons presently delineated in the statute. It should be noted that it is not the purpose of this amendment to change existing case law as to whether or not a third party has a protectable interest in certain records. See, Norkin v. Hoey , 181 A.D.2d 248, 252 (1st Dept., 1992) (bank records); People v. DiRaffaele , 55 N.Y.2d 234 (1982) (telephone records). This measure would solely provide a procedural mechanism by which a person, whose information is contained in the records sought, may object to the subpoena. Advisory Committee Notes: Subd (a) of this section is stated as broadly as possible. It includes the new “expense” provision in rule 30(b), recommended by the Federal rules advisory committee. Report of the Advisory Committee on Federal Rules 24, 26 (May 1954); id. at 35, 36–37 (Oct. 1955); see also Ky Prac & Serv, R Civ P 30.02 (Baldwin 1956); La Rev Stat § 13:3762 (Supp 1954); Minn R Civ P 30.02, 232 Minn Rep (1951). Under this subdivision the following matters, among others may be regulated: 1. the time, order, and place of taking depositions;. 2. the number and names of persons to be questioned;. 3. the time within which the information must be obtained;. 4. the number, kinds of questions, or specific questions which may be asked;. 5. the disclosure device or combination of devices which may be used; and. 6. the matters which may or may not be inquired into. There is no limit but the needs of the parties on the nature of the order or the conditions of discovery. The following orders are illustrative: 1. examination shall be held with no one present but the parties, officers of the court and counsel; information so obtained shall not be revealed, or, after being sealed, the deposition shall be opened only by order of the court;. 2. trade or business secrets, secret processes or research, or customer or stockholder lists need not be disclosed;. 3. parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;. 4. costs of transcription shall be paid by one or more of the parties or apportioned among them;. 5. in cases of disparity in economic resources, where such resources are being used to prevent another party from properly participating in the case, the party examining shall forego the examination or pay the expenses of any or all of the other parties or witnesses, including attorney’s fees reasonably incurred for representation at such examinations;. 6. physical examination of the property, person, documents, or records of a party or a witness shall be conducted at specified times, under specified conditions and in a specified manner;. Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 3 of 124 NY CLS CPLR § 3103 7. physical examination of property, person, documents, or records of a party or a witness shall be conducted using specified technical devices such as the motion picture camera, sound recording equipment, x-rays and spectroscope;. 8. where an examination requires the destruction of, or a substantial change in, property, experts appointed by all parties or the court shall be permitted to co-operate and be present at such an examination; and. 9. where it appears that a witness is under the control of one of the parties, such party shall bring the witness within the state so that his deposition may be taken here. In order to emphasize the court’s broad discretion under this subdivision the committee refused to adopt such provisions as those requiring payment of counsel fees where depositions are taken more than a specified number of miles from the court (13 Del Code Ann, R Civ P 30(h) (1953); Pa Stat Ann tit 12, R Civ P 4008 (Purdon Supp 1954)), specifying the maximum number of days to be devoted to depositions (see Comment, 59 Yale LJ 117, 133 (1949)), or limiting the number of interrogatories. Mass Ann Laws c. 231, § 61 (1955). Subd (b) of this section consists of the last two sentences of Federal rule 30(d), with minor changes. The suspension would be automatic. Subd (c) of this section is based on RCP 133 which applied only to depositions taken outside the state. Under rule 133, if the objection was not made before trial it was deemed waived because another examination could not then be taken. This subdivision should be read with CPLR rules 3112 and 3115. Amendment Notes: 2013. Chapter 205, § 1 amended: Sub (a) by adding the matter in italics. Commentary PRACTICE INSIGHTS: COMPARING STAYS OF DISCLOSURE By David L. Ferstendig, Law Offices of David L. Ferstendig, LLC General Editor, David L. Ferstendig, Esq. INSIGHT Under CPLR 3103, a motion for a protective order only stays the particular discovery in dispute. In contrast, a CPLR 3214 (b) stay of disclosure, which applies to the service of a motion to dismiss or for summary judgment, is a complete stay, with a limited exception relating to a service defense. It stays all discovery in the action, “unless the court orders otherwise,” thereby abrogating the stay. Unfortunately, over the years, attorneys have used the automatic stay provision as a mechanism to delay discovery and the case. Perhaps this is what has provoked judges and courts to adopt blanket rules eliminating the stay rather than deal with the issue on a case-by-case analysis. In those courts, the burden shifts to the party seeking the stay to argue that factors such as judicial economy and the like militate in favor of the stay. ANALYSIS Motion for a protective order only stays discovery of the particular matter in dispute. Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 4 of 124 NY CLS CPLR § 3103 When a party moves for a protective order under CPLR 3103, the subject matter of the motion only, the disputed discovery, is stayed pending the outcome of the motion. This is logical, of course, since permitting that discovery go forward as is might defeat the purpose of the motion. Any other outstanding discovery requests require a timely response. Motion to dismiss or for summary judgment stays all discovery “unless the court orders otherwise.” CPLR 3214(b) provides that dispositive motions, such as motions to dismiss, motions for summary judgment, and motions for summary judgment in lieu of complaint, except a motion relating to a service defense, stay discovery “unless the court orders otherwise.” The wording of the statute suggests that a stay is in effect unless, a judge in a particular case decides otherwise. Nevertheless, certain judges and entire courts appear to have shifted the burden to the party seeking the stay. See, e.g., Rules of the Commercial Division of the Supreme Court, 22 NYCRR 202.70, Rule 11(d) (“The court will determine, upon application of counsel, whether discovery will be stayed, pursuant to CPLR 3214(b), pending the determination of any dispositive motion”). OMITTING INFORMATION OTHER THAN EXPERT’S IDENTITY IN MEDICAL, DENTAL OR PODIATRIC MALPRACTICE ACTIONS By David L. Ferstendig, Law Offices of David L. Ferstendig, LLC General Editor, David L. Ferstendig, Esq. INSIGHT The Second Department (recently joined by the Third Department) has correctly recognized that in view of numerous technological advancements, particularly the internet, it is futile for plaintiff’s counsel to try to conceal the expert’s identity in medical, dental and podiatric malpractice actions. As CPLR 3101(d)(1)(i) provides, plaintiff’s counsel should be permitted only to omit the name of the expert, while providing all of the other information required by the statute. An even better and more realistic result would be for the Legislature to repeal the exception totally and make expert disclosure in all areas uniform. ANALYSIS Statute permits plaintiff to omit name of expert only. A party may request certain information concerning experts retained by other parties, including the identity of the expert. CPLR 3101(d)(1)(i). In medical, dental and podiatric malpractice actions, however, a party may respond to a request by omitting the names of the experts, but must disclose all other information concerning such experts. Arguments have been made as to whether a party can also omit reference to other information about the expert, particularly the expert’s qualifications. These arguments are based on the proposition that with the expansion of computer technology, it is relatively easy for attorneys and their staff to determine the identity of an expert based on the qualifications provided. Courts have come down on both sides of this issue, and fashioned various remedies ranging from full disclosure of the expert’s qualifications to the withholding of information that would lead to revealing the expert’s identity. Second Department requires plaintiff to establish that expert will be subjected to intimidation if expert’s identity were revealed. The Appellate Division for the Second Department ruled that a party must provide all expert information except for the expert’s identity, as expressly set forth in the statute. Recognizing that the technological changes point “to the futility of attempting to conceal the identity of expert witnesses in medical malpractice cases,” the court overruled its earlier decision in Jasopersaud v. Tao Gyoun Rho, 169 A.D.2d 184, 572 N.Y.S.2d 700 (2d Dep’t 1991). The court held that to obtain relief under the statute, the plaintiff must provide a factual showing of a concrete risk that a prospective expert medical witness would be subjected to intimidation or threats if the expert’s name were revealed before trial. The Thomas court, in essence, shifted the burden to the plaintiff to establish that the expert will be Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 5 of 124 NY CLS CPLR § 3103 “subjected to intimidation” if the expert’s identity were revealed, before the court would consider limiting the disclosure of the expert’s qualifications. Thomas v. Alleyne, 302 A.D.2d 36, 45-46, 752 N.Y.S.2d 362, 369-370 (2d Dep’t 2002). See also Allston-Rieder v. Schwartzman, 2005 N.Y. Misc. LEXIS 8445 (Sup. Ct. N.Y. Co. 2005) (“However, I believe, as does the Thomas court, that ‘this technological change points to the futility of attempting to conceal the identity of expert witnesses in medical malpractice cases’ ( 302 A.D.2d at 43); Instead of being forced to play the game of ‘In how few qualifications can I name your expert?’, all parties should be required to give full disclosure of each expert's qualifications to help promote settlement or to prepare for trial. Short of such full disclosure by all parties, plaintiffs seeking to avoid disclosing in ‘reasonable detail’ the expert qualification information to which defendants are ‘presumptively entitled’ under CPLR 3101(d)(1)(I), should be required to meet the two-part Thomas test.”). Third Department joins Second Department. In Kanaly v. DeMartino, 162 A.D.3d 142, 77 N.Y.S.3d 234 (3d Dep’t 2018), the Third Department joined the Second Department, rejecting its earlier standard, reasoning that permitting a party to withhold the expert’s qualifications, “had devolved into a quagmire for trial courts exercising oversight of disclosure; the standard has encouraged the withholding of information and the filing of motions by both sides, and requires determinations of what information would reveal the identity of each particular expert on a case-by-case basis…. [I]n most cases our current standard would permit a party to withhold vast amounts of information and reveal so little about its expert that the opposing party would be unable to adequately prepare for trial. … Inasmuch as this state's expert disclosure statute is already the most restrictive in the nation, there is no reason for this Court to continue to interpret the statute in a way that permits parties to severely limit the amount of information they provide regarding their expert witnesses.” Id. at 152-53. Fourth Department disagrees. In Thompson v. Swiantek, 291 A.D.2d 884, 736 N.Y.S.2d 819 (4th Dep’t), rearg. denied, 742 N.Y.S.2d 180 (4th Dep’t 2002) the Fourth Department carved out its own rule, permitting a responding party to withhold information concerning the expert’s medical school education, and the location of his or her internships, residences and fellowships. Notes To Decisions I.Under CPLR A.In General 1.Generally 2.Appeal and error 3.Conduct of disclosure 4.Construction and applicability 5.Jurisdiction 6.Motion practice, generally 7.—Bill of particulars as contingency 8.—Evidence and burden of proof 9.—Specificity Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 6 of 124 NY CLS CPLR § 3103 10.Priority of disclosure 11.Suppression of evidence 12.Suspension of disclosure 13.Taxing of costs B.Particular Circumstances or Conditions as Warranting Protective Orders 14.Generally 15.Accounting matters 16.AIDS/HIV concerns 17.Attorney’s presence at issue 18.Burden of proof 19.Corporate employees as witnesses 20.Counterclaim allegations 21.Damages at issue, generally 22.—Valuation matters 23.DNA testing 24.Expenses of discovery 25.Incapacity or disability, generally 26.—Infancy 26.5.—COVID-19 precautions 27.Inconvenience 28.Interpreter 29.Issue joined and ready for trial 30.Issue preclusion; law of the case 31.Multiple disclosures 32.Multiple parties 33.Multiple witnesses 34.Non-existence or destruction of documents or other physical evidence 35.Non-prejudicial error 36.Non-residents; out-of-state disclosures 37.“Overly broad” disclosure demands Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 7 of 124 NY CLS CPLR § 3103 38.Partnership records as subject of disclosure 39.Photographs as subject of disclosure 40.Privacy concerns 41.Privileged matter, generally 42.—Attorney-client privilege, generally 43.— —Attorney for insurer 44.— —Legal malpractice 45.— —Paralegal involved 46.—Grand jury minutes 47.—Law enforcement records, generally 48.— —FBI materials 49.—Physician-patient privilege, generally 50.— —AIDs-related information 51.— —Food and Drug Administration (FDA) records 52.— —Hospital records 53.— —Nursing records 54.— —Psychiatric information 55.—Tax records 56.—Waiver of privilege 57.—Youthful offender records 58.Relevancy and materiality, generally 59.—Accounting matters 60.—Arbitration proceedings 61.—Article 78 proceedings 62.—Bank records 63.—Building construction claims 64.—Defamation, generally 65.— —Libel 66.—Employment matters 67.—Equipment leasing actions Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 8 of 124 NY CLS CPLR § 3103 68.—Infant plaintiffs 69.—Insurance, generally 70.— —Automobile insurance 71.—Legal malpractice actions 72.—Matrimonial actions 73.—Medical malpractice actions, generally 74.— —Psychiatrist as defendant 75.—National security matters 76.—Probate proceedings 77.—Products liability actions 78.—Securities matters; stockholders 79.—Slip and fall cases 80.—Tax records at issue 81.—Wrongful death cases 82.Self-incrimination 83.Service of notice, generally 84.—Subpoena 85.Timeliness; laches 86.Trade secrets and the like 87.Transcription at issue, generally 88.—Videotaping 89.Unnecessary annoyance 90.Generally 91.Open commission 92.Terms and conditions generally 93.Payment of fees, costs and expenses as conditions of order 94.Modification or vacation 95.Review B.Motion to Vacate or Modify Notice 96.Generally Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVED Page NYSCEF: 11/14/2023 9 of 124 NY CLS CPLR § 3103 97.Scope of rule 98.Power of court to alter notice 99.Ex parte orders 100.Burden of moving and proof 101.Venue of motion 102.Time of motion 103.Affidavit 104.—Who may make affidavit 105.Grounds generally for vacation or modification 106.—Neglect to serve bill of particulars 107.Defects in form of notice 108.Technical irregularity 109.Merits 110.Sufficiency of pleading 111.Amendment of pleading 112.Waiver of objections 113.Possible incrimination of party to be examined 114.Order vacating or modifying notice 115.Effect of prior adjudications 116.Second application after vacation of first examination 117.Municipal corporations 118.Negligence cases 119.Witness as entitled to move to vacate or modify notice 120.Stay of examination C.Suppression of Information Improperly Obtained 121.Generally 122.Grounds for suppression 123.Time for motion to suppress 124.Irregularities and waiver 125.Exclusion of parts of deposition Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVEDPage NYSCEF: 11/14/2023 10 of 124 NY CLS CPLR § 3103 126.Impeachment of witness 127.Return of witness to state —272.——Medical examiner, coroner, pathologist and the like I. Under CPLR A. In General 1. Generally Court has authority under CLS CPLR § 3103(c) to impose any order, including order of dismissal, for disclosure abuses. Lipin v Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644 N.E.2d 1300, 1994 N.Y. LEXIS 3398 (N.Y. 1994). This section provides the procedure whereby a party may protect himself against any claimed impropriety or abuse of a discovery notice issued under Rule 3120. Coffey v Orbachs, Inc., 22 A.D.2d 317, 254 N.Y.S.2d 596, 1964 N.Y. App. Div. LEXIS 2453 (N.Y. App. Div. 1st Dep't 1964). The only permissible method for challenging any disclosure device is to move for a protective order under the provisions of CPLR 3103. Gambino v St. Mary's Hospital, 37 A.D.2d 903, 325 N.Y.S.2d 310, 1971 N.Y. App. Div. LEXIS 3128 (N.Y. App. Div. 4th Dep't 1971). Where plaintiffs were directors of defendant corporation at the time that they commenced derivative action, they were entitled to examine individual defendants before trial. Tansman v Community School Board, 53 A.D.2d 866, 385 N.Y.S.2d 494, 1976 N.Y. App. Div. LEXIS 13698 (N.Y. App. Div. 2d Dep't 1976). To be immune from discovery, party must demonstrate that material sought was prepared exclusively for litigation. Oppedisano v New York Mut. Underwriters, 111 A.D.2d 452, 488 N.Y.S.2d 512, 1985 N.Y. App. Div. LEXIS 51539 (N.Y. App. Div. 3d Dep't 1985). Fourth party plaintiff’s failure to move for protective order based upon nonexistence of requested documents immediately upon receipt of notice for discovery and inspection creates inference that documents were discarded after they had been requested; moreover, failure to offer reasonable excuse for absence of documents prior to motion to dismiss fourth party complaint indicates that fourth party plaintiff engaged in willful, contumacious and elusive conduct with respect to fourth party defendant’s discovery rights; accordingly, dismissal of fourth party complaint is warranted. Anteri v NRS Constr. Corp., 117 A.D.2d 696, 498 N.Y.S.2d 435, 1986 N.Y. App. Div. LEXIS 52978 (N.Y. App. Div. 2d Dep't 1986). Special Term made unwarranted order concerning resumption of pretrial deposition of plaintiffs in medical malpractice action by conditioning resumption on defendant hospital’s complying with plaintiffs’ request to identify persons named in certain hospital records, and to state whether persons were still hospital employees, since no such request had been made by plaintiffs; thus, order impermissibly empowered plaintiffs to deny disclosure to hospital by never submitting request. Holland v Presbyterian Hospital in New York, 122 A.D.2d 750, 506 N.Y.S.2d 56, 1986 N.Y. App. Div. LEXIS 59278 (N.Y. App. Div. 1st Dep't 1986). In negligence action, defendants’ failure to timely move for protective order did not constitute waiver of their right to subsequently object to certain discovery demands on grounds that items either were privileged or constituted attorney’s work product or material prepared for litigation. D'Alessio v Nabisco, Inc., 123 A.D.2d 816, 507 N.Y.S.2d 431, 1986 N.Y. App. Div. LEXIS 60948 (N.Y. App. Div. 2d Dep't 1986). Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVEDPage NYSCEF: 11/14/2023 11 of 124 NY CLS CPLR § 3103 In matrimonial action, Special Term was not constrained to deny husband’s request for pretrial deposition of wife with regard to her grounds for annulment or divorce, since there is no general prohibition against disclosure concerning merits of matrimonial actions, and restrictions on such disclosure are better left to individual determination; accordingly, matter should be remitted to Supreme Court for exercise of its discretion to decide wife’s motion for protective order based on circumstances presented on such motion. Semon v Saridis, 125 A.D.2d 882, 510 N.Y.S.2d 236, 1986 N.Y. App. Div. LEXIS 63071 (N.Y. App. Div. 3d Dep't 1986). Plaintiff’s failure to request protective order did not constitute absolute bar to right to object to disclosure of items where disclosure request was palpably improper. Starling v Warshowski, 148 A.D.2d 441, 538 N.Y.S.2d 593, 1989 N.Y. App. Div. LEXIS 2468 (N.Y. App. Div. 2d Dep't 1989). Defendant’s motion for protective order, made in afternoon of day that his pleadings were unconditionally struck, was properly denied. Helms v Gangemi, 265 A.D.2d 203, 696 N.Y.S.2d 441, 1999 N.Y. App. Div. LEXIS 10304 (N.Y. App. Div. 1st Dep't 1999). Trial court properly, upon reargument, conditionally granted an injured customer’s motion to strike the store owner’s answer for failure to comply with discovery demands, precluded it from offering any evidence at trial, and denied its motion for a protective order because the owner’s repeated failure to comply with discovery demands justified the imposition of a conditional order of preclusion. Kayantas v Restaurant Depot, LLC, 173 A.D.3d 718, 102 N.Y.S.3d 295, 2019 N.Y. App. Div. LEXIS 4433 (N.Y. App. Div. 2d Dep't 2019). Enactment of Civil Practice Law and Rules §§ 3101 and 3103 did not change rule of former practice that state was not amenable to pretrial examination in anti-trust cases. State v Boar's Head Provisions Co., 46 Misc. 2d 759, 260 N.Y.S.2d 418, 1965 N.Y. Misc. LEXIS 1933 (N.Y. Sup. Ct. 1965). Administratrix waived the doctor-patient privilege pertaining to the decedent’s past medical conditions related to his cardiac condition and abdominal pains because the essence of the administratrix’s wrongful death medical malpractice claim was an alleged failure to evaluate and monitor the decedent’s cardiac condition or to treat him for abdominal pain, and defendants were entitled to those related records; since the action for wrongful death medical malpractice action sought damages of a pecuniary nature, the administratrix waived any claim of privacy or privilege with respect to the financial affairs of the decedent and thus defendants were entitled to discovery of all matters pertaining to economic loss, including the decedent’s income tax returns. Friedman v Frank, 835 N.Y.S.2d 872, 16 Misc. 3d 321, 237 N.Y.L.J. 104, 2007 N.Y. Misc. LEXIS 3310 (N.Y. Sup. Ct. 2007). 2. Appeal and error An open commission to examine witnesses should never be granted except under peculiar circumstances and not upon the motion of the plaintiff without the strongest and most necessary reason. Einstein v General Electric Co., 9 A.D. 570, 41 N.Y.S. 808, 1896 N.Y. App. Div. LEXIS 2609 (N.Y. App. Div. 1896). In view of questionable merit of appeal and imminence of trial, stay would not be granted pending determination of appeal from granting defendant’s motion for protective order. Messner v Messner, 42 A.D.2d 889, 347 N.Y.S.2d 589, 1973 N.Y. App. Div. LEXIS 3585 (N.Y. App. Div. 1st Dep't 1973). In a personal injury action, defendant manufacturing company’s motion to vacate the infant plaintiff’s notice for pretrial examination was properly denied, although plaintiff’s counsel would be required to pay a sum of money to defendant, inasmuch as the trial court should have permitted the discovery to proceed conditionally in view of the persistent dilatory conduct of plaintiff’s counsel. Knauer v Wade Mfg. Co., 92 A.D.2d 562, 459 N.Y.S.2d 312, 1983 N.Y. App. Div. LEXIS 16794 (N.Y. App. Div. 2d Dep't 1983). Special Term’s orders limiting plaintiff’s pretrial deposition testimony in medical malpractice action were appealable where court made no ruling on particular questions and where orders derived from formal notices of motion and were supported by full record; under such circumstances, orders did not constitute rulings directed to examination Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVEDPage NYSCEF: 11/14/2023 12 of 124 NY CLS CPLR § 3103 before trial so as to be nonappealable. Holland v Presbyterian Hospital in New York, 122 A.D.2d 750, 506 N.Y.S.2d 56, 1986 N.Y. App. Div. LEXIS 59278 (N.Y. App. Div. 1st Dep't 1986). Appellate Division could review propriety of discovery request for plaintiffs’ federal income tax returns, despite plaintiffs’ failure to make timely motion for protective order, since discovery request was palpably improper as it sought information of confidential and private nature which did not appear to be relevant to issues in case. Grossman v Lacoff, 168 A.D.2d 484, 562 N.Y.S.2d 724, 1990 N.Y. App. Div. LEXIS 15416 (N.Y. App. Div. 2d Dep't 1990). Portion of order that denied plaintiffs’ cross motion for protective order was not appealable where it was, in effect, untimely motion for reargument of earlier order directing plaintiffs to appear for deposition and mental examination. Smith by Smith v Parkchester Apts. Co., 240 A.D.2d 223, 658 N.Y.S.2d 880, 1997 N.Y. App. Div. LEXIS 6149 (N.Y. App. Div. 1st Dep't 1997). In tenants’ action to recover rent overpayment, order granting landlords’ motion in limine to restrain tenants from questioning jurors regarding certain matters during voir dire was in nature of ruling made during trial and thus was not appealable. Bergen Tile, Inc. v Robbins Fulton Corp., 251 A.D.2d 524, 673 N.Y.S.2d 920, 1998 N.Y. App. Div. LEXIS 7479 (N.Y. App. Div. 2d Dep't 1998). On appeal from grant of protective order which quashed subpoena and notice of deposition served by medical malpractice plaintiffs on nonparty pediatrician who attended delivery of infant plaintiff, issue as to applicability of CLS CPLR § 3101(a)(3) could be reviewed although it was raised for first time on appeal, because it was issue of law which appeared on face of record and could not have been avoided if raised at proper juncture. Calvao v St. John's Riverside Hosp., 261 A.D.2d 350, 689 N.Y.S.2d 185, 1999 N.Y. App. Div. LEXIS 4483 (N.Y. App. Div. 2d Dep't 1999). Because a county department of social services did not comply with a law guardian’s discovery demands, serve written objections identifying a defect, or move for a protective order, pursuant to N.Y. C.P.L.R. 3112, 3103(a), 3120, N.Y. Fam. Ct. Act § 1038(b), the law guardian was entitled to compel the demanded disclosure. Matter of John H., 56 A.D.3d 1024, 868 N.Y.S.2d 790, 2008 N.Y. App. Div. LEXIS 8706 (N.Y. App. Div. 3d Dep't 2008). Trial court did not abuse its discretion when it denied discovery relief requested by plaintiffs and sua sponte ordered a protective order as to certain discovery requests because the trial court had authority to determine the terms and provisions of discovery and to prevent abuse by the use of protective orders. Bligen v Markland Estates, Inc., 6 A.D.3d 371, 773 N.Y.S.2d 906, 2004 N.Y. App. Div. LEXIS 3854 (N.Y. App. Div. 2d Dep't 2004). Court did not improvidently exercise its discretion in granting that branch of the hospital's motion for leave to reargue because the court overlooked that the training courses and related written materials described at the deposition included materials pertaining to the years 2010 and 2013 in addition to the year 2009; the court improvidently exercised its discretion in amending the preclusion order to provide that the training materials for the year 2010 were not subject to discovery. Hackshaw v Mercy Med. Ctr., 139 A.D.3d 798, 33 N.Y.S.3d 297, 2016 N.Y. App. Div. LEXIS 3567 (N.Y. App. Div. 2d Dep't 2016). Trial court erred when it granted in part a protective order regarding certain document demands by debtors in an action by the bank to collect on allegedly defaulted debt obligations and counterclaims asserting that the lending scheme was fraudulent, as the bank should have conducted an in camera review to determine whether the documents contained confidential supervisory information for purposes of the bank privilege. Manufacturers & Traders Trust Co. v Client Server Direct, Inc., 156 A.D.3d 1364, 68 N.Y.S.3d 280, 2017 N.Y. App. Div. LEXIS 9043 (N.Y. App. Div. 4th Dep't 2017). 3. Conduct of disclosure Where plaintiff, in personal injury action, sought only to take corporate defendant’s oral deposition and had not made any request for specific documents, it would have been premature to direct that discovery proceedings take Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVEDPage NYSCEF: 11/14/2023 13 of 124 NY CLS CPLR § 3103 place in Michigan and, therefore, special term properly denied defendant’s motion requesting that any discovery against it be conducted at its corporate headquarters in Michigan. Bihari v Upjohn Co., 58 A.D.2d 569, 395 N.Y.S.2d 220, 1977 N.Y. App. Div. LEXIS 12588 (N.Y. App. Div. 2d Dep't 1977). Defendant could not rely on CPLR § 3103(b) to relieve it from its obligation of being deposed where the motion to stay disclosure, scheduled for the next day, was not purportedly brought for the purpose of obtaining a protective order pursuant to that section nor was the supporting affidavit based in former substance upon the grounds set forth in that section for obtaining a protective order, and additionally, defendant’s assertion that it relied in good faith upon the automatic stay provisions was somewhat if not totally undercut by the fact that a portion of the proposed order to show cause submitted contained a specific stay pending determination of the motion but that provision was stricken by the Justice granting the order. Spancrete Northeast, Inc. v Travelers Indem. Co., 99 A.D.2d 623, 472 N.Y.S.2d 177, 1984 N.Y. App. Div. LEXIS 16858 (N.Y. App. Div. 3d Dep't 1984). It was not improper for trial court to shift burden of paying interpreter’s cost from examining party to examined party, even though CLS CPLR § 3114 provides that if witness does not understand English, examining party must provide translation, since CLS CPLR § 3103(a) gives court broad discretion to regulate “use of any disclosure device.” Ozen v Yilmaz, 181 A.D.2d 666, 580 N.Y.S.2d 468, 1992 N.Y. App. Div. LEXIS 3006 (N.Y. App. Div. 2d Dep't 1992). In action for injuries sustained when plaintiff ingested glass fragments allegedly resulting from disintegration of neck of glass bottle from which he was drinking, court properly limited photography of bottle testing process, which included measurement and visual examination of glass, to periods before and at conclusion of testing process, where bottle was not to be destroyed, and plaintiffs were permitted to have representative present at all stages of testing to ensure its integrity. Poyer v Wegman's, 242 A.D.2d 843, 662 N.Y.S.2d 153, 1997 N.Y. App. Div. LEXIS 8829 (N.Y. App. Div. 3d Dep't 1997). Court properly directed plaintiff wife in divorce action to comply with provisions of CLS CPLR § 3120(2) in obtaining disclosure of any business, partnership, or corporation information relating to husband’s noncontrolling interest in such companies. MacKinnon v MacKinnon, 245 A.D.2d 690, 665 N.Y.S.2d 123, 1997 N.Y. App. Div. LEXIS 12576 (N.Y. App. Div. 3d Dep't 1997). In declaratory judgment action involving plaintiff disability insurer and simple claim for insurance by defendant insured, court properly directed out-of-state nonparty witness depositions sought by plaintiff to be conducted by videoconferencing at plaintiff’s expense, where defendant had supplied voluminous discovery but plaintiff refused to file note of issue and instead repeatedly waited until eve of court conferences before sending out copious new discovery demands, including more than 50 nonparty witness depositions of individuals and entities throughout United States, including defendant’s former clients, supervisors and business associates. Provident Life & Cas. Ins. Co. v Brittenham, 283 A.D.2d 629, 725 N.Y.S.2d 84, 2001 N.Y. App. Div. LEXIS 5484 (N.Y. App. Div. 2d Dep't 2001). Record supported the supreme court’s determination to deny plaintiffs’ request for an extension of time because, by filing the motion for a protective order as to certain information, plaintiffs were not relieved of the obligation to otherwise comply with the court’s August 21, 2015, order. Kim & Bae, P.C. v Lee, 173 A.D.3d 990, 103 N.Y.S.3d 530, 2019 N.Y. App. Div. LEXIS 4973 (N.Y. App. Div. 2d Dep't), app. dismissed, 173 A.D.3d 993, 100 N.Y.S.3d 888, 2019 N.Y. App. Div. LEXIS 4976 (N.Y. App. Div. 2d Dep't 2019). A party will not be permitted to take an examination before trial in longhand, rather than by a qualified stenographer, since CPLR R 3113(c) provides that the examination “shall proceed as permitted in the trial of actions in open court”, and to permit a violation of this practice would be an “unreasonable annoyance” (CPLR § 3103). Gammarata v Bill's Garage, Inc., 40 Misc. 2d 1081, 244 N.Y.S.2d 832, 1963 N.Y. Misc. LEXIS 1337 (N.Y. Dist. Ct. 1963). Pursuant to CPLR 3103 (subd [a]), a court may order that a stenographic record be taken of a psychiatric examination predicated upon CPLR 3121 in order to protect the examined party from improper questioning during the examination and possibly to aid in its preparation for cross-examination of the psychiatrist; the stenographic reporter should be stationed outside of the examining room and the examined party is required to provide the Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 24 RECEIVEDPage NYSCEF: 11/14/2023 14 of 124 NY CLS CPLR § 3103 psychiatrist with a copy of the transcript. Murray v Specialty Chemicals Co., 100 Misc. 2d 658, 418 N.Y.S.2d 748, 1979 N.Y. Misc. LEXIS 2522 (N.Y. Sup. Ct. 1979). In a personal injury negligence action by claimant, who was allegedly burned through the negligence of defendant while an inmate in a State correctional facility, a motion for an order directing the Department of Correctional Services to produce certain prisoners for the purposes of interview and examination before trial would be granted, where the named inmates allegedly witnessed the occurrence upon which the claim was based and where the claimant had reason to believe that said inmates would give statements contradicting those made by correction officers; however, the court would not make any order tending to interfere with proper security in the correctional facilities such as ordering correction officers not to interfere with the discovery process. Additionally, the court would consider that the order to be entered upon the motion would be the practical equivalent of a subpoena. Sebastiano v State, 112 Misc. 2d 1030, 447 N.Y.S.2d 987, 1982 N.Y. Misc. LEXIS 3234 (N.Y. Ct. Cl. 1982), aff'd, 92 A.D.2d 966, 460 N.Y.S.2d 841, 1983 N.Y. App. Div. LEXIS 17388 (N.Y. App. Div. 3d Dep't 1983). Requiring a defendant to turn over surveillance materials upon a plaintiff’s demand and prior to depositions need not result in any undue prejudice, such as tailored testimony by the plaintiff, since a defendant may seek an appropriate protective order pursuant to CPLR 3103(a). Falk v Inzinna, 299 A.D.2d 120, 749 N.Y.S.2d 259, 2002 N.Y. App. Div. LEXIS 10023 (N.Y. App. Div. 2d Dep't 2002). Because a landlord failed to demonstrate that compliance with his tenant’s disclosure request, in the landlord’s use holdover proceeding, would be unduly burdensome, prejudicial, or dilatory, and the landlord did not object to disclosing any document requested, and did not cross-move under N.Y. C.P.L.R. 3103 for an order of protection, the tenant’s N.Y. C.P.L.R. 408 motion seeking certain documents and to depose the landlord’s wife in order to ascertain the landlord’s good-faith intention to use the building as a single-family home was granted as: (1) the information sought was exclusively in the landlord’s knowledge; (2) the tenant did not have to accept the landlord’s bare assertions at face value; and (3) the tenant had a right to disclosure to assess the true purpose behind the landlord’s bare assertions and conduct. Smilow v Ulrich, 806 N.Y.S.2d 392, 11 Misc. 3d 179, 2005 N.Y. Misc. LEXIS 2710 (N.Y. Civ. Ct. 2005). In a contested accounting proceeding related to a decedent’s revocable trust, ob