Selected statutes on discovery and trial preparation
phase:
Probation Deparment reports in
custody and visitation cases
FCA § 653. Rules of court
Rules of court, not inconsistent with any law, may authorize the
probation service to interview such persons and obtain such data as will aid
the court in determining a habeas corpus or custody proceeding under section
six hundred fifty-one.
Discovery
FCA § 165. Procedure
[applicability of CPLR]
(a) Where the method of procedure in any proceeding in which
the family court has jurisdiction is not prescribed by this act, the procedure
shall be in accord with rules adopted by the administrative board of the
judicial conference or, if none has been adopted, with the provisions of the
civil practice act to the extent they are suitable to the proceeding involved.
Upon the effective date of the CPLR, where the method of procedure in any
proceeding in which the family court has jurisdiction is not prescribed, the
provisions of the civil practice law and rules shall apply to the extent that
they are appropriate to the proceedings involved.
* * *
CPLR § 3101. Scope of
disclosure
(a) Generally. There shall be full disclosure of
all matter material and necessary in the prosecution or defense of an action,
regardless of the burden of proof, by:
(1) a party, or the officer, director, member, agent or employee of a
party;
(2) a person who possessed a cause of action or defense asserted in the
action;
(3) a person about to depart from the state, or without the state, or
residing at a greater distance from the place of trial than one hundred miles,
or so sick or infirm as to afford reasonable grounds of belief that he or she
will not be able to attend the trial, or a person authorized to practice
medicine, dentistry or podiatry who has provided medical, dental or podiatric
care or diagnosis to the party demanding disclosure, or who has been retained
by such party as an expert witness; and
(4) any other person, upon notice stating the circumstances or reasons
such disclosure is sought or required.
(b) Privileged matter. Upon
objection by a person entitled to assert the privilege, privileged matter shall
not be obtainable.
(c) Attorney's work product.
The work product of an attorney shall not be obtainable.
(d) Trial preparation.
1. Experts.
(i) Upon
request, each party shall identify each person whom the party expects to call
as an expert witness at trial and shall disclose in reasonable detail the
subject matter on which each expert is expected to testify, the substance of
the facts and opinions on which each expert is expected to testify, the
qualifications of each expert witness and a summary of the grounds for each
expert's opinion. However, where a party for good cause shown retains an expert
an insufficient period of time before the commencement of trial to give
appropriate notice thereof, the party shall not thereupon be precluded from
introducing the expert's testimony at the trial solely on grounds of
noncompliance with this paragraph. In that instance, upon motion of any party,
made before or at trial, or on its own initiative, the court may make whatever
order may be just. In an action for medical, dental or podiatric malpractice, a
party, in responding to a request, may omit the names of medical, dental or
podiatric experts but shall be required to disclose all other information
concerning such experts otherwise required by this paragraph.
(ii) In an action for medical, dental or
podiatric malpractice, any party may, by written offer made to and served upon
all other parties and filed with the court, offer to disclose the name of, and
to make available for examination upon oral deposition, any person the party
making the offer expects to call as an expert witness at trial. Within twenty
days of service of the offer, a party shall accept or reject the offer by
serving a written reply upon all parties and filing a copy thereof with the
court. Failure to serve a reply within twenty days of service of the offer
shall be deemed a rejection of the offer. If all parties accept the offer, each
party shall be required to produce his or her expert witness for examination
upon oral deposition upon receipt of a notice to take oral deposition in
accordance with rule thirty-one hundred seven of this chapter. If any party,
having made or accepted the offer, fails to make that party's expert available
for oral deposition, that party shall be precluded from offering expert
testimony at the trial of the action.
(iii) Further disclosure concerning
the expected testimony of any expert may be obtained only by court order upon a
showing of special circumstances and subject to restrictions as to scope and
provisions concerning fees and expenses as the court may deem appropriate.
However, a party, without court order, may take the testimony of a person
authorized to practice medicine, dentistry or podiatry who is the party's
treating or retained expert, as described in paragraph three of subdivision (a)
of this section, in which event any other party shall be entitled to the full
disclosure authorized by this article with respect to that expert without court
order.
2. Materials. Subject to the provisions of paragraph one of this
subdivision, materials otherwise discoverable under subdivision (a) of this
section and prepared in anticipation of litigation or for trial by or for
another party, or by or for that other party's representative (including an
attorney, consultant, surety, indemnitor, insurer or
agent), may be obtained only upon a showing that the party seeking discovery
has substantial need of the materials in the preparation of the case and is
unable without undue hardship to obtain the substantial equivalent of the
materials by other means. In ordering discovery of the materials when the
required showing has been made, the court shall protect against disclosure of
the mental impressions, conclusions, opinions or legal theories of an attorney
or other representative of a party concerning the litigation.
(e) Party's statement. A
party may obtain a copy of his own statement.
(f) Contents of insurance
agreement. * * *
(g) Accident reports. * * *
(h) Amendment or supplementation
of responses. A party shall amend or supplement a response previously
given to a request for disclosure promptly upon the party's thereafter
obtaining information that the response was incorrect or incomplete when made,
or that the response, though correct and complete when made, no longer is
correct and complete, and the circumstances are such that a failure to amend or
supplement the response would be materially misleading. Where a party obtains
such information an insufficient period of time before the commencement of
trial appropriately to amend or supplement the response, the party shall not
thereupon be precluded from introducing evidence at the trial solely on grounds
of noncompliance with this subdivision. In that instance, upon motion of any
party, made before or at trial, or on its own initiative, the court may make
whatever order may be just. Further amendment or supplementation may be
obtained by court order.
(i) In addition to any other matter which may be
subject to disclosure, there shall be full disclosure of any films,
photographs, video tapes or audio tapes, including transcripts or memoranda
thereof, involving a person referred to in paragraph one of subdivision (a) of
this section. There shall be disclosure of all portions of such material,
including out-takes, rather than only those portions a party intends to use.
The provisions of this subdivision shall not apply to materials compiled for
law enforcement purposes which are exempt from disclosure under section
eighty-seven of the public officers law.
CPLR § 3102. Method of obtaining disclosure
(a) Disclosure
devices. Information is obtainable by one or more of the
following disclosure devices: depositions upon oral questions or without the
state upon written questions, interrogatories, demands for addresses, discovery
and inspection of documents or property, physical and mental examinations of
persons, and requests for admission.
(b) Stipulation or notice normal
method. Unless otherwise provided by the civil practice law and rules or
by the court, disclosure shall be obtained by stipulation or on notice without
leave of the court.
* * *
CPLR 3120. Discovery
and production of documents and things for inspection, testing, copying or
photographing
1. After commencement of an action, any party may
serve on any other party a notice or on any other person a subpoena duces tecum:
(i) to produce and permit the party seeking
discovery, or someone acting on his or her behalf, to inspect, copy, test or
photograph any designated documents or any things which are in the possession,
custody or control of the party or person served; or
(ii) to permit entry upon designated land or other property in the
possession, custody or control of the party or person served for the purpose of
inspecting, measuring, surveying, sampling, testing, photographing or recording
by motion pictures or otherwise the property or any specifically designated
object or operation thereon.
2. The notice or subpoena duces tecum shall specify the time, which shall be not less than
twenty days after service of the notice or subpoena, and the place and manner
of making the inspection, copy, test or photograph, or of the entry upon the
land or other property and, in the case of an inspection, copying, testing or
photographing, shall set forth the items to be inspected, copied, tested or
photographed by individual item or by category, and shall describe each item
and category with reasonable particularity.
3. The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve
a copy of the subpoena upon all other parties and, within five days of
compliance therewith, in whole or in part, give to each party notice that the
items produced in response thereto are available for inspection and copying,
specifying the time and place thereof.
4. Nothing contained in this section shall be construed to change the
requirement of section 2307 that a subpoena duces tecum to be served upon a library or a department or bureau
of a municipal corporation, or of the state, or an officer thereof, requires a
motion made on notice to the library, department, bureau or officer, and the
adverse party, to a justice of the supreme court or a judge of the court in
which the action is triable.
CPLR § 3121. Physical or
mental examination
(a) Notice of examination. After commencement of an
action in which the mental or physical condition or the blood relationship of a
party, or of an agent, employee or person in the custody or under the legal
control of a party, is in controversy, any party may serve notice on another
party to submit to a physical, mental or blood examination by a designated
physician, or to produce for such examination his agent, employee or the person
in his custody or under his legal control. The notice may require duly executed
and acknowledged written authorizations permitting all parties to obtain, and
make copies of, the records of specified hospitals relating to such mental or
physical condition or blood relationship; where a party obtains a copy of a
hospital record as a result of the authorization of another party, he shall
deliver a duplicate of the copy to such party. A copy of the notice shall be
served on the person to be examined. It shall specify the time, which shall be
not less than twenty days after service of the notice, and the conditions and
scope of the examination.
(b) Copy of report. A copy of a detailed written report of the
examining physician setting out his findings and conclusions shall be delivered
by the party seeking the examination to any party requesting to exchange therefor a copy of each report in his control of an
examination made with respect to the mental or physical condition in
controversy.
CPLR § 3123. Admissions as
to matters of fact, papers, documents and photographs
(a) Notice to admit; admission unless denied or denial
excused. At any time after service of the answer or after the expiration
of twenty days from service of the summons, whichever is sooner, and not later
than twenty days before the trial, a party may serve upon any other party a
written request for admission by the latter of the genuineness of any papers or
documents, or the correctness or fairness of representation of any photographs,
described in and served with the request, or of the truth of any matters of
fact set forth in the request, as to which the party requesting the admission
reasonably believes there can be no substantial dispute at the trial and which
are within the knowledge of such other party or can be ascertained by him upon
reasonable inquiry. Copies of the papers, documents or photographs shall be
served with the request unless copies have already been furnished. Each of the
matters of which an admission is requested shall be deemed admitted unless
within twenty days after service thereof or within such further time as the
court may allow, the party to whom the request is directed serves upon the
party requesting the admission a sworn statement either denying specifically
the matters of which an admission is requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny those matters. If the
matters of which an admission is requested cannot be fairly admitted without
some material qualification or explanation, or if the matters constitute a
trade secret or such party would be privileged or disqualified from testifying
as a witness concerning them, such party may, in lieu of a denial or statement,
serve a sworn statement setting forth in detail his claim and, if the claim is
that the matters cannot be fairly admitted without some material qualification
or explanation, admitting the matters with such qualification or explanation.
(b) Effect of admission. Any admission made, or deemed to be made,
by a party pursuant to a request made under this rule is for the purpose of the
pending action only and does not constitute an admission by him for any other
purpose nor may it be used against him in any other proceeding; and the court,
at any time, may allow a party to amend or withdraw any admission on such terms
as may be just. Any admission shall be subject to all pertinent objections to
admissibility which may be interposed at the trial.
(c) Penalty for unreasonable denial. If a party, after being served
with a request under subdivision (a) does not admit and if the party requesting
the admission thereafter proves the genuineness of any such paper or document,
or the correctness or fairness of representation of any such photograph, or the
truth of any such matter of fact, he may move at or immediately following the
trial for an order requiring the other party to pay him the reasonable expenses
incurred in making such proof, including reasonable attorney's fees. Unless the
court finds that there were good reasons for the denial or the refusal
otherwise to admit or that the admissions sought were of no substantial
importance, the order shall be made irrespective of the result of the action.
Upon a trial by jury, the motion for such an order shall be determined by the
court outside the presence of the jury.
CPLR § 3130. Use of interrogatories
1. Except as otherwise provided
herein, after commencement of an action, any party may serve upon any other
party written interrogatories. Except in a matrimonial action, a party
may not serve written interrogatories on another party and also demand a bill
of particulars of the same party pursuant to section 3041. In the case of an
action to recover damages for personal injury, injury to property or wrongful
death predicated solely on a cause or causes of action for negligence, a party
shall not be permitted to serve interrogatories on and conduct a deposition of
the same party pursuant to rule 3107 without leave of court.
2. After the commencement of a matrimonial action or proceeding, upon
motion brought by either party, upon such notice to the other party and to the
non-party from whom financial disclosure is sought, and given in such manner as
the court shall direct, the court may order a non-party to respond under oath
to written interrogatories limited to furnishing financial information
concerning a party, and further provided such information is both reasonable
and necessary in the prosecution or the defense of such matrimonial action or
proceeding.
CPLR § 3041. Bill of
particulars in any case
Any party may require any other party to
give a bill of particulars of such party's claim, or a copy of the items of the
account alleged in a pleading. As used elsewhere in this article, the term
"bill of particulars" shall include "copy of the items of an
account."
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