Today the Senate passed S.5077 (Bonacic), supported by LRANY, which would clarify the rules relating to the conduct of an examination before trial. The bill does not yet have a sponsor in the assembly.
The measure, introduced upon the recommendation of the Chief Administrative Judge, would allow the counsel for a non-party witness to object to the form and relevance of questioning. The current law does not allow such objections to be raised, following the Appellate Division’s ruling in Thompson v. Mather (2010). In Thompson, arrangements had been made for videotaped depositions – for use at trial – of plaintiff’s treating physicians. During the course of those depositions, the attorney for a witness objected to the form and relevance of certain questions. The Appellate Division ultimately ruled that “counsel for a non-party witness does not have a right to object during or otherwise to participate in a pretrial deposition.” In the words of the NYS Supreme Court, this ruling reduced the non-party witness’s attorney to a “potted plant.”
The court’s ruling in Thompson has given rise to a troubling practice. Plaintiffs’ lawyers now commonly depose non-party witnesses before they are named in the lawsuit, allowing them to question the witness without the witness’ lawyer being able to raise objections to prejudicial or improper questions. If the deposition yields statements that are favorable to the plaintiff, the witness will be added as a party to the suit, and their statements used as evidence in court. As the Chief Administrative Judge notes in the bill’s sponsor memo, the current law, “…leaves a non-party witness essentially unprotected during a deposition. A lay witness may not, for example, know when to decline to answer a question because it invades a privilege, or is plainly improper and would, if answered, cause significant prejudice to any person.”
LRANY supports S.5077 because it would restore an important measure of balance to civil litigation by protecting non-party witnesses from improper questioning.