STATE OF NEW YORK
       ________________________________________________________________________
 
                                        6352--A
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 6, 2001
                                      ___________
 
       Introduced  by M. of A. LOPEZ -- read once and referred to the Committee
         on Judiciary -- committee discharged, bill amended, ordered  reprinted
         as amended and recommitted to said committee
 
       AN  ACT  to  amend  the civil practice law and rules, in relation to the
         conduct of examinations
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1. Rule 3113 of the civil practice law and rules, paragraph 2
    2  of subdivision (a) as amended by chapter 98 of  the  laws  of  1993  and
    3  subdivision  (b) as amended by judicial conference proposal number 1 for
    4  the year 1977, is amended to read as follows:
    5    Rule 3113. Conduct of the examination. (a) Persons before whom deposi-
    6  tions may be taken. Depositions may be taken before any of the following
    7  persons [except an attorney, or employee of an attorney, for a party  or
    8  prospective  party  and except a person who would be disqualified to act
    9  as a juror because of interest in the event or consanguinity or affinity
   10  to a party]:
   11    1. within the state, a person authorized by the laws of the  state  to
   12  administer oaths;
   13    2. without the state but within the United States or within a territo-
   14  ry  or  possession  subject  to the jurisdiction of the United States, a
   15  person authorized to take acknowledgments of deeds outside of the  state
   16  by the real property law of the state or to administer oaths by the laws
   17  of the United States or of the place where the deposition is taken; and
   18    3. in a foreign country, any diplomatic or consular agent or represen-
   19  tative  of  the  United States, appointed or accredited to, and residing
   20  within, the country, or  a  person  appointed  by  commission  or  under
   21  letters  rogatory,  or an officer of the armed forces authorized to take
   22  the acknowledgment of deeds.
   23    Officers may be designated in notices or commissions either by name or
   24  descriptive title and letters rogatory may be addressed "To  the  Appro-
   25  priate Authority in (here name the state or country)."
   26    (b)  Persons before whom depositions may not be taken. Depositions may
   27  not be taken before any of the following persons:
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09664-02-1

       A. 6352--A                          2
 
    1    1. a party or a prospective party;
    2    2.  an  attorney or an employee of an attorney for a party or prospec-
    3  tive party;
    4    3. a person who would be disqualified to act as  a  juror  because  of
    5  interest in the event;
    6    4. a person with consanguinity or affinity to a party; or
    7    5.  a person who enters into or provides services under a preferential
    8  agreement with a party.
    9    (c) For the purposes of subdivision (b) of  this  rule,  "preferential
   10  agreement"  means any contractual agreement, written or oral, exclusive,
   11  or nonexclusive where:
   12    1. the agreement undermines the impartiality of the court reporter  or
   13  court reporting agency; or
   14    2. a court reporter gives or appears to give an exclusive advantage to
   15  any party by providing any service, term or condition not made available
   16  to all parties in an action. Such services, terms and conditions include
   17  but  are  not limited to, time and method of payment, time and method of
   18  transcript or rough draft transcript delivery, data-basing of deposition
   19  transcripts, provision of computerized real-time  services,  waivers  of
   20  certain fees or charges, and taking deposition summaries.
   21    (d)  If a deposition is taken by a person described in subdivision (c)
   22  of this rule then that deposition shall be void.
   23    (e) The provisions in subdivisions (b), (c) and (d) of this section do
   24  not apply to a contract for court reporting services for a court,  agen-
   25  cy, or instrumentality of the United States or this state.
   26    (f)  Oath  of  witness; recording of testimony; objections; continuous
   27  examination; written questions read by examining officer.   The  officer
   28  before  whom the deposition is to be taken shall put the witness on oath
   29  and shall personally, or by someone acting under his  direction,  record
   30  the  testimony. The testimony shall be recorded by stenographic or other
   31  means, subject to such rules as may be adopted by the appellate division
   32  in the department where the action is pending.  All objections  made  at
   33  the  time of the examination to the qualifications of the officer taking
   34  the deposition or the person recording it, or to the  manner  of  taking
   35  it,  or to the testimony presented, or to the conduct of any person, and
   36  any other objection to the proceedings, shall be noted  by  the  officer
   37  upon  the  deposition  and  the  deposition shall proceed subject to the
   38  right of a person to apply for a protective order. The deposition  shall
   39  be  taken  continuously and without unreasonable adjournment, unless the
   40  court otherwise orders or the  witness  and  parties  present  otherwise
   41  agree.    In  lieu  of  participating  in an oral examination, any party
   42  served with notice of taking a deposition may transmit written questions
   43  to the officer, who shall propound them to the witness  and  record  the
   44  answers.
   45    [(c)]  (g)  Examination and cross-examination.  Examination and cross-
   46  examination of deponents shall proceed as  permitted  in  the  trial  of
   47  actions  in  open court.  When the deposition of a party is taken at the
   48  instance of an adverse party, the deponent may be cross-examined by  his
   49  own  attorney.    Cross-examination  need  not be limited to the subject
   50  matter of the examination in chief.
   51    § 2. This act shall take effect on the thirtieth day  after  it  shall
   52  have become a law.