Motion for Expedited Discovery in New York

Background

The court is authorized to expedite discovery to prevent prejudice to a claimant’s rights. (Civ. Pract. Law & Rules, § 3103; Bel Geddes v. Zeiderman, 228 A.D.2d 393 [1st Dept. 1996].)

How to Structure the Motion

The order of normal examination priority will not be disturbed except upon a showing of special circumstances, such as the existence of a fiduciary relationship between the parties or where the facts sought to be elicited are peculiarly within the knowledge of the defendant or the information is within the defendants’ custody. (NOPA Realty Corp. v. Central Caterers, 91 A.D.2d 991 [2nd Dept. 1983]; Halitzer v. Ginsberg, 80 A.D.2d 771 [1st Dept. 1981].) The burden to show special circumstances is on the proponent of the request for expedited discovery. (Grosso Moving & Packing Co., Inc. v. Damens, 261 A.D.2d 339 [1st Dept. 1999]; Hakim Consultants Ltd. v. Formosa Ltd., 175 A.D.2d 759, 760 [1st Dept. 1991].)

The determinative factor leading a court to grant expedited discovery is the potential for imminent harm that would occur without such expedited discovery. (Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. 728, 730 [S.D.N.Y. 1996].) “To evaluate a request for expedited discovery, the following factors must be considered:

1. irreparable injury,
2. some probability of success on the merits,
3. some connection between expedited discovery and the avoidance of the irreparable injury, and
4. some evidence that the injury that will result without expedited discovery looms greater than the injury that the defendant will suffer if the expedited relief is granted.”

(Id.)

The common-sense principle underpinning a motion for expedited discovery is that time is a real factor—when there is some plausible risk that the moving party’s interests will be irreparably damaged by adherence to the usual discovery procedures. (Sylmark Holdings, Ltd. v. Silicone Zone Int’l Ltd., 5 Misc. 3d 285 [Sup. Ct. N.Y. Cty. 2004].)

The Court’s Decision

It is well established that trial courts have inherent authority and broad discretion to control the scope and the timing of discovery. (Maiorino v. City of N.Y., 39 A.D.3d 601, 834 N.Y.S.2d 272, 273 [N.Y. App. Div. 2007].) The trial court’s authority and discretion to order expedited discovery is based on the facts and circumstances of each case. (Hochberg v. Maimonides Med. Ctr., 37 A.D.3d 660, 831 N.Y.S.2d 439, 440 [N.Y. App. Div. 2007].)

“The supervision of disclosure and the setting of reasonable terms and conditions for disclosure are matters within the sound discretion of the motion court, and generally will not be disturbed on appeal absent demonstrated abuse of that discretion.” (Neal v. Spitz & Peck Floral Decorators, 30 Misc. 3d 141(A) [1st Dept. 2011].)