STATE OF NEW YORK
       ________________________________________________________________________
 
                                         4848
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    April 17, 2001
                                      ___________
 
       Introduced  by  Sen. BALBONI -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
 
       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)."
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09664-04-1

       S. 4848                             2
 
    1    (b) Persons before whom depositions may not be taken. Depositions  may
    2  not be taken before any of the following persons:
    3    1. a party or a prospective party;
    4    2.  an  attorney or an employee of an attorney for a party or prospec-
    5  tive party;
    6    3. a person who would be disqualified to act as  a  juror  because  of
    7  interest in the event;
    8    4. a person with consanguinity or affinity to a party; or
    9    5.  a person who enters into or provides services under a preferential
   10  agreement with a party.
   11    (c) For the purposes of subdivision (b) of  this  rule,  "preferential
   12  agreement"  means any contractual agreement, written or oral, exclusive,
   13  or nonexclusive where:
   14    1. the agreement undermines the impartiality of the court reporter  or
   15  court reporting agency; or
   16    2. a court reporter gives or appears to give an exclusive advantage to
   17  any party by providing any service, term or condition not made available
   18  to all parties in an action. Such services, terms and conditions include
   19  but  are  not limited to, time and method of payment, time and method of
   20  transcript or rough draft transcript delivery, data-basing of deposition
   21  transcripts, provision of computerized real-time  services,  waivers  of
   22  certain fees or charges, and taking deposition summaries.
   23    (d)  If a deposition is taken by a person described in subdivision (c)
   24  of this rule then that deposition shall be void.
   25    (e) The provisions in subdivisions (b), (c) and (d) of  this  rule  do
   26  not  apply to a contract for court reporting services for a court, agen-
   27  cy, or instrumentality of the United States or this state.
   28    (f) Oath of witness; recording of  testimony;  objections;  continuous
   29  examination;  written  questions read by examining officer.  The officer
   30  before whom the deposition is to be taken shall put the witness on  oath
   31  and  shall  personally, or by someone acting under his direction, record
   32  the testimony. The testimony shall be recorded by stenographic or  other
   33  means, subject to such rules as may be adopted by the appellate division
   34  in  the  department where the action is pending.  All objections made at
   35  the time of the examination to the qualifications of the officer  taking
   36  the  deposition  or  the person recording it, or to the manner of taking
   37  it, or to the testimony presented, or to the conduct of any person,  and
   38  any  other  objection  to the proceedings, shall be noted by the officer
   39  upon the deposition and the deposition  shall  proceed  subject  to  the
   40  right  of a person to apply for a protective order. The deposition shall
   41  be taken continuously and without unreasonable adjournment,  unless  the
   42  court  otherwise  orders  or  the  witness and parties present otherwise
   43  agree.   In lieu of participating in  an  oral  examination,  any  party
   44  served with notice of taking a deposition may transmit written questions
   45  to  the  officer,  who shall propound them to the witness and record the
   46  answers.
   47    [(c)] (g) Examination and cross-examination.   Examination and  cross-
   48  examination  of  deponents  shall  proceed  as permitted in the trial of
   49  actions in open court.  When the deposition of a party is taken  at  the
   50  instance  of an adverse party, the deponent may be cross-examined by his
   51  own attorney.   Cross-examination need not be  limited  to  the  subject
   52  matter of the examination in chief.
   53    §  2.  This  act shall take effect on the thirtieth day after it shall
   54  have become a law.

 
BILL NUMBER: S4848
 
SPONSOR: BALBONI

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the conduct of examinations
 
 
PURPOSE:  Provides that if a deposition is taken by a person entering
into or providing court reporting services under a preferential agree-
ment which gives an exclusive advantage to any party by providing a
service not made available to all parties in an action then said deposi-
tion is void.
 
 
SUMMARY OF PROVISIONS:  Section 1 amends Rule 3113 of the Civil Prac-
tice Law and Rules to specify that a deposition may not be taken before
certain parties. This section also specifies that if a deposition is
taken before a prohibited party, then that deposition is rendered void.
Section 2 establishes an effective date.
 
 
JUSTIFICATION:  This bill seeks to curb a serious threat to our judi-
cial system in the form of big litigation payors entering into long-
term, preferential agreements with certain court reporting agencies by
rendering a deposition void if it is taken pursuant to an agreement
where court reporting services are not equally made available to all
parties in a lawsuit.
 
Blatant examples of preferential treatment required of court reporters
through insurers' special deals include: compiling witness databases and
information sheets; providing expedited delivery of a deposition tran-
script prior to other parties receiving a copy; remaining after other
parties have taken a deposition to take diction from counsel; and
producing summaries of depositions to counsel.  These preferential
agreements undermine the impartiality of the judicial process. Instead
of being neutral parties in the judicial process, reporters are now
actively involved in helping one side in the prosecution of their cases,
thereby placing consumers seeking redress in the courts at a serious
disadvantage.
 
 
LEGISLATIVE HISTORY:  This is a new bill.
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  This act shall take effect in 30 days.