STATE OF NEW YORK
       ________________________________________________________________________
 
                                        3536--B
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    March 14, 2001
                                      ___________
 
       Introduced  by  Sen.  VOLKER -- read twice and ordered printed, and when
         printed to be  committed  to  the  Committee  on  Codes  --  committee
         discharged, bill amended, ordered reprinted as amended and recommitted
         to  said  committee  --  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 conduct
         of depositions
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section 1. Subdivisions (b) and (c) of rule 3113 of the civil practice
    2  law  and  rules,  subdivision  (b)  as  amended  by  judicial conference
    3  proposal number 1 for the year 1977, are amended to read as follows:
    4    (b) Oath of witness; recording of testimony; [objections;]  continuous
    5  examination;  written  questions  read by examining officer. The officer
    6  before whom the deposition is to be taken shall put the witness on  oath
    7  and  shall  personally, or by someone acting under his or her direction,
    8  record the testimony. The testimony shall be recorded by stenographic or
    9  other means, subject to such rules as may be adopted  by  the  appellate
   10  division in the department where the action is pending.  [All objections
   11  made at the time of the examination to the qualifications of the officer
   12  taking  the  deposition  or the person recording it, or to the manner of
   13  taking it, or to the testimony presented,  or  to  the  conduct  of  any
   14  person,  and  any  other objection to the proceedings, shall be noted by
   15  the officer upon the deposition and the deposition shall proceed subject
   16  to the right of a person to apply for a protective order.]  The  deposi-
   17  tion  shall  be taken continuously and without unreasonable adjournment,
   18  unless the court otherwise orders or the  witness  and  parties  present
   19  otherwise  agree.  In  lieu of participating in an oral examination, any
   20  party served with notice of taking a  deposition  may  transmit  written
   21  questions  to  the  officer,  who shall propound them to the witness and
   22  record the answers.
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09673-03-1

       S. 3536--B                          2
 
    1    (c) Examination [and cross-examination] by any  party.    [Examination
    2  and  cross-examination  of  deponents  shall proceed as permitted in the
    3  trial of actions in open court. When the deposition of a party is  taken
    4  at  the instance of an adverse party, the deponent may be cross-examined
    5  by  his  own attorney.  Cross-examination] Any party attending a deposi-
    6  tion may examine the deponent. Such examination need not be  limited  to
    7  the subject matter of the examination in chief.
    8    §  2. Rule 3115 of the civil practice law and rules is amended to read
    9  as follows:
   10    Rule 3115. Objections [to qualification of person taking]  at  deposi-
   11  tion;  [competency;] questions and answers.  (a) [Objection when deposi-
   12  tion offered in evidence] Objections in general; statements or comments.
   13  No objections shall be made at a deposition except those which, pursuant
   14  to subdivision (b), (c) or (d), would be waived if  not  interposed  and
   15  except  in  compliance  with subdivision (e).   All objections made at a
   16  deposition shall be noted by the officer before whom the  deposition  is
   17  taken,  and the answer shall be given, except as provided in subdivision
   18  (e); and the deposition shall proceed subject to the objections  and  to
   19  the  right  of a person to apply for appropriate relief pursuant to this
   20  article.  Subject to the other provisions of this rule, objection may be
   21  made at the trial or hearing to receiving in evidence any deposition  or
   22  part  thereof  for  any  reason which would require the exclusion of the
   23  evidence if the  witness  were  then  present  and  testifying.    Every
   24  objection  raised  during  a  deposition  shall be stated succinctly and
   25  framed so as not to suggest an  answer  to  the  deponent  and,  at  the
   26  request  of the questioning attorney, shall include a clear statement as
   27  to any defect in form or other basis of error or irregularity. Except to
   28  the extent permitted  herein,  during  the  course  of  the  examination
   29  persons  in attendance shall not make statements or comments that inter-
   30  fere with the questioning.
   31    (b) Errors which might be obviated if made known promptly. Errors  and
   32  irregularities occurring at the oral examination in the manner of taking
   33  the  deposition, in the form of the questions or answers, in the oath or
   34  affirmation, or in the conduct of persons, and errors of any kind  which
   35  might  be  obviated or removed if objection were promptly presented, are
   36  waived unless reasonable objection thereto is made at the taking of  the
   37  deposition.
   38    (c)  Disqualification  of  person  taking deposition. Objection to the
   39  taking of a deposition because of disqualification of the person by whom
   40  it is to be taken is waived unless made before the taking of the deposi-
   41  tion begins or as soon thereafter as the disqualification becomes  known
   42  or could be discovered with reasonable diligence.
   43    (d)  Competency of witnesses or admissibility of testimony. Objections
   44  to the competency of a witness or to the admissibility of testimony  are
   45  not  waived  by  failure to make them before or during the taking of the
   46  deposition, unless the ground of the objection is one which  might  have
   47  been obviated or removed if objection had been made at that time.
   48    (e)  Refusal  to  answer.  A  deponent shall answer all questions at a
   49  deposition, except (i) to preserve a privilege or right of confidential-
   50  ity, (ii) to enforce a limitation set forth in an order of a  court,  or
   51  (iii)  when  the  question  is  plainly improper and would, if answered,
   52  cause significant prejudice to any person. An attorney shall not  direct
   53  a  deponent  not  to  answer except as provided in this subdivision. Any
   54  refusal to answer shall be accompanied by a succinct and clear statement
   55  of the basis for the refusal.  If the deponent does not answer  a  ques-

       S. 3536--B                          3
 
    1  tion, the examining party shall have the right to complete the remainder
    2  of the deposition.
    3    (f)  Communication  with the deponent. An attorney shall not interrupt
    4  the deposition for the purpose of communicating with the deponent unless
    5  all parties consent or the communication is  made  for  the  purpose  of
    6  determining  whether  the question should not be answered on the grounds
    7  set forth in subdivision (e), and, in such event,  the  reason  for  the
    8  communication shall be stated for the record succinctly and clearly.
    9    (g) Form of written questions. Objections to the form of written ques-
   10  tions are waived unless served in writing upon the party propounding the
   11  questions  within  the  time allowed for serving succeeding questions or
   12  within three days after service.
   13    § 3. This act shall take effect on  the  first  day  of  January  next
   14  succeeding the date on which it shall have become a law.

 
BILL NUMBER: S3536B
 
SPONSOR: VOLKER

AN ACT to amend the civil practice law and rules, in relation to conduct
of depositions
 
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice and Procedure.
 
Our Advisory Committee has recommended that certain changes be made to
CPLR 3113 and 3115 to ensure that depositions in a civil case are
conducted as efficiently, civilly, professionally and inexpensively as
possible.  Long experience has shown that existing rules governing depo-
sitions permit counsel to engage in actions that obstruct the search for
truth and make the process of discovery more time-consuming, less effi-
cient and more expensive than it needs to be.
 
For example, frequent use is made of so-called speaking objections
objections accompanied by, or made in the form of, speeches exceeding
what is necessary to preserve an objection to form. At a minimum, these
speaking objections interfere with the smooth flow of the deposition and
cause delay. At times, they have the effect of signaling to the witness
how a question ought to be answered and, indeed, that often is their
purpose.
 
Further, some attorneys believe it okay to direct a witness not to
answer any question they find objectionable. And some attorneys claim a
right to consult with the client-deponent during questioning so as
effectively to coach the deponent in responding to the questioning.
 
It also is not unusual for attorneys, for tactical reasons or because of
overzealousness or rudeness, deliberately to interrupt and burden depo-
sitions with comments about the adversary's case. See 8A C. Wright, A.
Miller & R.  Marcus, Federal Practice and Procedure § 21 13, at 95 (2d
ed.  1994) ("Disruptive or oppressive behavior by attorneys during depo-
sitions has emerged as a serious concern"). Some attorneys even stoop to
invective and insult. See, e.g., Corsini v. U-Haul International, Inc.,
212 A.D.2d 288 (1st Dept., 1995) (complaint dismissed on appeal because
of improper conduct); In re Schiff 190 A.D.2d 293 (1st Dept. 1993);
Uncivil Conduct in Depositions, 2 NY Litigator 29 (Nov. 1996), quoting
R. Adler, Reckless Disregard 1 58 (1986) (alt is not altogether unusual
... to proceed as rudely and ferociously as possible.").
 
These practices cause serious damage. They not only produce injustices
in individual cases where they are employed, they also undermine the
foundations of the discovery process and impair the public image of the
legal  profession.
 
CPLR 3115 currently provides that most objections to deposition ques-
tioning are preserved for trial " a salutary principle that facilitates
an orderly, fair and efficient deposition. Our Advisory Committee urges
that the rule go further, however, and that it provide that objections
not required to be made, not be made during depositions. Accordingly,
this measure would limit an attorney's opportunity to interpose
objections that are preserved for trial solely to make the taking of the
deposition difficult or expensive for the inquiring attorney. Similarly,
it would require that, when objections are made, they be stated
succinctly and not framed so as to suggest answers to the witness. Last-
ly, the measure would generally prohibit statements or comments that
interfere with questioning.
 
Also under the proposal, objections to a question's form, at the option
of the inquiring attorney, must be accompanied by a statement of the
claimed defect or basis for a perceived error or irregularity. The obli-
gation placed on the objecting counsel to justify his or her objection
should create a disincentive for the misuse of objections and facilitate
quick and inexpensive correction of minor problems. At the same time,
requiring articulation of a defect only when requested by the questioner
should minimize opportunities for abuse.
 
This measure would add a new CPLR 311 5(e) to establish reasonable and
clear limits on the practice of directing a witness not to answer a
question.  Subdivision (e) would principally be directed at the attorney
representing the deponent, but it also would apply to other counsel. It
would restrict when an attorney could direct a witness not to answer to
instances in which (1) a privilege or right of confidentiality would be
lost were the testimony to be required; (2) it is necessary to enforce a
court order; or (3) a question is not merely improper but is plainly so
and would cause substantial prejudice to any person if an answer were
required. To discourage abuse, the objecting attorney would be required
to state the basis for the objection and the refusal to answer.  At the
same time, however, the measure would make clear that, even when an
objection is well"founded, it cannot be an excuse to end the questioning
or to cause delay insofar as questions not in controversy are concerned.
An attorney may direct a witness to refuse to answer and may seek a
protective order with regard to the offending question, but the parties
must continue the session on other matters unless the attorney for the
examining party agrees to adjourn at that point. This should promote
efficiency and fairness and limit delay and expense.
 
The measure also would amend CPLR 311 5 to prohibit an attorney from
interrupting a deposition to communicate with the deponent except under
narrow circumstances. Interruption after a question is posed but before
it is answered obviously creates a risk that the testimony will be
influenced by attorney coaching. This risk is present as well if the
interruption occurs after the answer is given, at which time the witness
can be induced to see the light and to "correct" the answer. According-
ly, under our proposal, for an attorney to interrupt the questioning,
the parties must consent or (1) a privilege or right of confidentiality,
which would be eviscerated by the giving of testimony, must be at stake,
or (2) interruption is necessary to enforce a court order, or (3) that
questioning must be plainly improper and would cause significant preju-
dice to a person. The proposal would not, however, forbid communication
with a witness during recesses; nor would it deprive defending counsel
of an opportunity to correct mistakes.
 
The attorney representing the party being examined at a deposition would
remain able to seek a protective order in the event that counsel
conducting the deposition were in some fashion to exceed the bounds of
proper conduct.
 
Finally, the measure would make several technical changes to rules 3113
and 311 5. First, it would move provisions governing the making of
objections from rule 3113(b) and place them (slightly modified) in rule
311 5(a) so that all provisions on objections could be found in one
 
place. Second, it would clarify in rule 311 5(c) that any party attend-
ing a deposition may examine the deponent.
 
Of course, no set of rules can address precisely every conceivable
circumstance. Our Advisory Committee believes, however, that the rules
set forth in this measure are fair and reasonable, provide bright lines
to guide counsel and will discourage abuses in the conduct of deposi-
tions that too often mar the litigation process in New York.{1}
 
This measure, which have no fiscal impact, would take effect on the
first day of January next succeeding the date on which it shall have
become a law.
 
 
1997-98  LEGISLATIVE HISTORY:  Senate 6813 (Volker)  
Codes
 
Assembly 11019 (Rules, Klein)  
Rules
 
 
1999-00 LEGISLATIVE HISTORY:  Senate 3411 (Volker) (Rules
 
Assembly 5292-A (Klein) (3rd Reading
 
 
2001 LEGISLATIVE HISTORY:  Senate 3536 (Volker)  
Codes
 
Assembly 2079 (Klein)  
Passed
 
{1}The approach embodied in this proposal comports with the recent
action taken in other jurisdictions. e.g., New Jersey Rule 4:14-3; Fed.
r. Civ. P. 30(d).