NYS CPLR 3102(e) Instructions as Provided by the New York County Supreme Court Ex-Parte Clerk
1. The application for an instate deposition for use in an out of state action is made under the authority of CPLR 3102(e).
2. Generally the action is made by ex-parte application which requires the purchase of an index number but not an RJI (Request for Judicial Intervention). In some situations the application may be made by order to show cause.
3. The application must be made by a New York attorney with a New York address. For local legal representation in New York in the preparation and submission of all applications, motions, petitions and actions, or to conduct examinations and depositions, CONTACT US FOR REFERRALS
4. Generally it is based on an out of state commission or equivalent (letter of rogatory). In some states the basis of the application is made by proceeding on notice. If that is the method used then copies of the notice of deposition must accompany the application with appropriate proofs of service.
5. Except as noted above the application requires the following:
a: Proposed Order
b: An affidavit of the New York attorney
c: The commission or equivalent document
d: A New York subpoena that will be served with the signed order
6. If Notices of Deposition have been previously served and are available, copies should be included.
7. Be advised that CPLR 3106(b) (20 days notice). If you seek a waiver of the requirement, you must make reference to it in the affidavit and provide as much documentary evidence as possible (written consents, etc.) (also be aware of CPLR 3107).
8. Comply with NYCRR 130-1.1 (not frivolous).
9. In brief, the attorney's affidavit must include:
a: Statement that the affidavit was prepared by a New York attorney with a New York address.
b: A brief description as to the need of the order and the basis for the application.
c: Statement pursuant to CPLR 2217(b) (no previous application)
d: Any other statements regarding anything special or unique concerning the application.
10. Videotaping of any deposition is only allowed if the commission specifically provides for it. Uniform rules provide that the name and address of the operator be included in the order, affidavit and on the subpoena (see rule 202.15).
Remember that the court's primary concern is to honor the commission and insure that the rights of the witness receive adequate protection; draft your application accordingly. If your commission is specific as to date, time, place, etc., the court is bound by the commission, so include it in your order.
Civil Practice Law and Rules: Section 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.
(c) Before action commenced. Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may
appoint a referee to take testimony.
(d) After trial commenced. Except as provided in section 5223, during and after trial, disclosure may be obtained only by order of the trial court on notice.
(e) Action pending in another jurisdiction. When under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition.
(f) Action to which state is party. In an action in which the state is properly a party, whether as plaintiff, defendant or otherwise, disclosure by the state shall be available as if the state were a private person.
Rule 3106. Priority of depositions; witnesses; prisoners; designation of deponent.
(a) Normal priority. After an action is commenced any party may take the testimony of any person by deposition upon oral or written questions. Leave of the court, granted on motion, shall be obtained if notice of the taking of the deposition of a party is served by the plaintiff before that party's time for serving a responsive pleading has expired.
(b) Witnesses. Where the person to be examined is not a party or a person who at the time of taking the deposition is an officer, director, member or employee of a party, he shall be served with a subpoena. Unless the court orders otherwise, on motion with or without notice, such subpoena shall be served at least twenty days before the examination. Where a motion for a protective order against such an examination is made, the witness shall be notified by the moving party that the examination is stayed.
(c) Prisoners. The deposition of a person confined under legal process may be taken only by leave of the court.
(d) Designation of deponent. A party desiring to take the deposition of a particular officer, director, member or employee of a person shall include in the notice or subpoena served upon such person the identity, description or title of such individual. Such person shall produce the individual so designated unless they shall have, no later than ten days prior to the scheduled deposition, notified the requesting party that another individual would instead be produced and the identity, description or title of such individual is specified. If timely notification has been so given, such other individual shall instead be produced.
Civil Practice Law & Rules: Rule 2217. Prior motion; ex parte motion; transfer of motion.
(a) Prior motion. Any motion may be referred to a judge who decided a prior motion in the action.
(b) Affidavit on ex parte motion. An ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown.
(c) Transfer of motion. If a motion is made to a judge who is or will be for any reason unable to hear it, it may be transferred by order of such judge or by written stipulation of the parties to any other judge to whom it might originally have been made.
(d) Rules of the chief administrator of the courts. The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivisions (a) and (c) of this rule.
Please note that the standard language used on the affidavit supporting an initial application is: "No prior application has been made to this or any other court for the relief requested."
22 NYCRR 202.15. Videotape recording of civil depositions.
(a) When permitted. Depositions authorized under the provisions of the Civil Practice Law and Rules or other law may be taken, as permitted by section 31.13(b) of the Civil Practice Law and Rules, by means of simultaneous audio and visual electronic recording, provided such recording is made in conformity with this section.
(b) Other rules applicable. Except as otherwise provided in this section, or where the nature of videotaped
recording makes compliance impossible or unnecessary, all rules generally applicable to examinations before trial shall apply to videotaped recording of depositions.
(c) Notice of taking deposition. Every notice or subpoena for the taking of a videotaped deposition shall
state that it is to be videotaped and the name and address of the videotape operator and of the operator's employer, if any. The operator may be an employee of the attorney taking the deposition. Where an application for an order to take a videotaped deposition is made, the application and order shall contain the same information.
(d) Conduct of the examination. (1) The deposition shall begin by one of the attorneys or the operator stating on camera:
(i) the operator's name and address;
(ii) the name and address of the operator's employer;
(iii) the date, the time and place of the deposition; and
(iv) the party on whose behalf the deposition is being taken.
The officer before whom the deposition is taken shall be a person authorized by statute and shall identify himself or herself and swear the witness on camera. If the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced by the operator.
(2) Every videotaped deposition shall be timed by means of a time-date generator which shall permanently record hours, minutes and seconds. Each time the videotape is stopped and resumed, such times shall be orally announced on the tape.
(3) More than one camera may be used, either in sequence or simultaneously.
(4) At the conclusion of the deposition, a statement shall be made on camera that the recording is completed. As soon as practicable thereafter, the videotape shall be shown to the witness for examination, unless such showing and examination are waived by the witness and the parties.
(5) Technical data, such as recording speeds and other information needed to replay or copy the tape, shall be included on copies of the videotaped deposition.
(e) Copies and transcription. The parties may make audio copies of the deposition and thereafter may purchase additional audio and audio-visual copies. A party may arrange to have a stenographic transcription made of the deposition at his or her own expense.
(f) Certification. The officer before whom the videotape deposition is taken shall cause to be attached to
the original videotape recording a certification that the witness was fully sworn or affirmed by the officer and that the videotape recording is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification in accordance with the provisions of section 3116 of the Cvil Practice Law and
Rules.
(g) Filing and objections. (1) If no objections have been made by any of the parties during the course of the deposition, the videotape deposition may be filed by the proponent with the clerk of the trial court and shall be filed upon the request of any party.
(2) If objections have been made by any of the parties during the course of the deposition, the videotape
deposition, with the certification, shall be submitted to the court upon the request of any of the parties within 10 days after its recording, or within such other period as the parties may stipulate, or as soon thereafter as the objections may be heard by the court, for the purpose of obtaining rulings on the bjections. An audio copy of the sound track may be submitted in lieu of the videotape for this purpose, as the court may prefer. The court may view such portions of the videotape recording as it deems
pertinent to the objections made, or may listen to an audiotape recording. The court, in its discretion, may also require submission of a stenographic transcript of the portion of the deposition to which objection is made, and may read such transcript in lieu of reviewing the videotape or audio copy.
(3)(i) The court shall rule on the objections prior to the date set for trial and shall return the recording to the
proponent of the videotape with notice to the parties of its rulings and of its instructions as to editing. The editing shall reflect the rulings of the court and shall remove all references to the objections. The proponent, after causing the videotape to be edited in accordance with the court's instructions, may cause both the original videotape recording and the deleted version of the recording, clearly identified, to be filed with the clerk of the trial court, and shall do so at the request of any party. Before such filing, the proponent shall permit the other party to view the edited videotape.
(ii) The court may, in respect to objectionable material, instead of ordering its deletion, permit such material to be clearly marked so that the audio recording may be suppressed by the operator during the objectionable portion when the videotape is presented at the trial. In such case the proponent may cause both the original videotape recording and a marked version of that recording, each clearly identified, to be filed with the clerk of the trial court, and shall do so at the request of any party.
(h) Custody of tape. When the tape is filed with the clerk of the court, the clerk shall give an appropriate
receipt for the tape and shall provide secure and adequate facilities for the storage of videotape recordings.
(i) Use at trial. The use of videotape recordings of depositions at the trial shall be governed by the provisionsof the Civil Practice Law and Rules and all other relevant statutes, court rules and decisional law relating to depositions and relating to the admissibility of evidence. The proponent of the videotaped deposition shall have the responsibility of providing whatever equipment and personnel may be necessary for presenting such videotape deposition.
(j) Applicability to audio taping of depositions. Except where clearly inapplicable because of the lack of a
video portion, these rules are equally applicable to the taking of depositions by audio recording alone. However, in the case of the taking of a deposition upon notice by audio recording alone, any party, at least five days before the date noticed for taking the deposition, may apply to the court for an order establishing additional or alternate procedures for the taking of such audio deposition, and upon the making of the application, the deposition may be taken only in accordance with the court order.
(k) Cost. The cost of videotaping or audio recording shall be borne by the party who served the notice for the videotaped or audio recording of the deposition, and such cost shall be a taxable disbursement in the action unless the court in its discretion orders otherwise in the interest of justice.
(l) Transcription for appeal. On appeal, visual and audio depositions shall be transcribed in the same manner as other testimony and transcripts filed in the appellate court. The visual and audio depositions shall remain part of the original record in the case and shall be transmitted therewith. In lieu of the transcribed deposition and, on leave of the appellate court, a party may request a viewing of portions of the visual deposition by the appellate court but, in such case, a transcript of pertinent portions of the deposition shall be filed as required by the court.
Historical Note: Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.
Civil Practice Law & Rules: Rule 3107. Notice of taking oral questions.
A party desiring to take the deposition of any person upon oral examination shall give to each party twenty days' notice, unless the court orders otherwise. The notice shall be in writing, stating the time and place for taking the deposition, the name and address of each person to be examined, if known, and, if any name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. The notice need not enumerate the matters upon which the person is to be examined. A party to be examined pursuant to notice served by another party may serve notice of at least ten days for the examination of any other party, his agent or employee, such examination to be noticed for and to follow at the same time and place.
