Article 31 Disclosure Flashcards
CPLR 3101
As to the disclosure of all matter material and necessary in the prosecution or defense of an action:
(a) there is no obligation to disclose
(b) only the party having the burden of proof must disclose
(c) only the defendant must disclose
(d) full disclosure is required, regardless of the burden of proof.
Answer: (d)
CPLR 3101(a) requires that generally there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.
CPLR 3101
Disclosure of police accident reports is:
(a) not permitted
(b) required in all cases
(c) discretionary with the police agency
(d) required, unless prepared for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution.
Answer: (d)
CPLR 3101(g) states that there shall be full disclosure of any written report of an accident unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution.
Choices (a), (b) and (c) are unsupported by the CPLR.
CPLR 3101(h)
If a party, after responding to a request for disclosure, thereafter obtains additional information to the effect that the response is now materially incorrect or incomplete, the party should:
(a) wait for the other party to demand the additional information
(b) amend or supplement the response
(c) seek an order from the court
(d) not provide the additional information if the original response was made in good faith.
Answer: (b)
CPLR 3101(h) provides that in such an instance, a party must amend or supplement a previously given response when the circumstances are such that a failure to amend or supplement the response would be materially misleading.
Choice (b) is correct.
CPLR 3101(f)
No later than ____ days after service of an answer in a civil action, defendant shall provide a copy of the insurance policy in place at the time of the loss.
(a) 120
(b) 30
(c) 90
(d) There is no requirement to reveal the existence of an insurance policy.
Answer: Correct answer is (c) per CPLR 3101(f).
CPLR 3102
Disclosure devices include:
1. depositions upon oral questions
2. inspection of property
3. mental examinations of persons
4. demands for addresses
(a) 1, 2, 3 and 4
(b) 1 only
(c) 1, 2 and 4 only
(d) 1 and 2 only.
Answer: (a)
CPLR 3102(a) provides that each of the listed devices is a disclosure device.
CPLR 3102
Unless otherwise provided by the CPLR or the court, disclosure shall be obtained:
(a) by stipulation
(b) on notice without leave of court
(c) both (a) and (b) are correct
(d) neither (a) nor (b) is correct.
Answer: (c)
CPLR 3102(b) provides that unless otherwise provided by the CPLR or by the court, disclosure shall be obtained by stipulation or on notice without leave of the court. Thus, both choices (a) and (b) are correct.
CPLR 3102
As to disclosure after a trial has commenced, the general rule is that:
(a) no disclosure is allowed
(b) disclosure is required just as before trial
(c) disclosure may be obtained only by order of the trial court on notice
(d) disclosure is required only by the party having the burden of proof.
Answer: (c)
CPLR 3102(d) states that generally disclosure after a trial has been commenced may be obtained only by order of the trial court on notice. Thus, choice (c) is correct.
CPLR 3103
A protective order seeks to limit discovery abuses by limiting and regulating the use of disclosure devices. A protective order may be granted:
1. by the court on its own initiative
2. on the motion of any party
3. on the motion of any person from whom discovery is sought.
(a) 1, 2 or 3
(b) 2 only
(c) 1 or 2 only
(d) 2 or 3 only.
Answer: (a)
CPLR 3103(a) provides that the court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Thus, choice (a) is correct. The statute additionally provides that such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court.
CPLR 3104
An order made by a referee as to disclosure:
(a) is not reviewable
(b) is reviewable only on appeal from a final judgment in the action
(c) is immediately reviewable upon application to the court having appellate jurisdiction
(d) is reviewable by the trial court, on motion.
Answer: (d)
CPLR 3104(d) provides that an order made by a referee as to disclosure is reviewable in the court in which the action is pending, on motion by any party or witness.
Choices (a), (b) and (c) are unsupported by the CPLR.
CPLR 3104
Who may, under proper circumstances, supervise all or part of a disclosure procedure:
1. a judge of the court in which the action is pending
2. a referee
3. a judicial hearing officer designated as a referee
4. an attorney stipulated to act as a referee by all of the parties.
(a) 1 only
(b) 1 or 2 only
(c) 1, 2 or 3 only
(d) 1, 2, 3 or 4.
Answer: (d)
CPLR 3104(a) provides that upon the motion of any party or witness, or on its own initiative, the court in which an action is pending may, by one of its judges or a referee, supervise all or part of any disclosure procedure. CPLR 3104(b) then provides that a judicial hearing officer may be designated as a referee or the court may permit all of the parties in an action to stipulate that a named attorney act as a referee. Thus, choice (d) is the correct answer.
CPLR 3106
When a non-party witness is served with a subpoena for pre-trial deposition, unless the court orders otherwise, the subpoena shall be served at least ________ days before the examination.
(a) ten
(b) fifteen
(c) twenty
(d) thirty.
Answer: (c)
CPLR 3106(b) provides for twenty days notice for a non-party witness.
CPLR 3108
A deposition may be taken on written questions when:
(a) the examining party and the deponent so stipulate
(b) the testimony is to be taken without the State
(c) both (a) and (b) are true
(d) neither (a) nor (b) is true.
Answer: (c)
CPLR 3108 provides that a deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the State. Thus, both choices (a) and (b) are correct.
CPLR 3110
A party residing in Westchester County is served in Suffolk County with a proper notice to appear for an examination before trial (i.e., a deposition). The action is pending in Dutchess County. The person served has an office for the regular transaction of business in Nassau County. All counties are within New York State. He may properly be required to appear in:
(a) Westchester or Nassau Counties only
(b) Suffolk or Westchester Counties only
(c) Dutchess or Nassau Counties only
(d) Nassau, Dutchess or Westchester Counties only.
Answer: (d)
CPLR 3110(1) provides that a party may be examined within the county in which (i) he resides, (ii) he has an office for the regular transaction of business or (iii) the action is pending. Thus, choice (d) is correct.
CPLR 3110
A non-party resident of Westchester County is served in Suffolk County with a proper notice to appear for an examination before trial (i.e., a deposition). The action is pending in Dutchess County. The person is regularly employed in Nassau County. All counties are within New York State. He may properly be required to appear in:
(a) only Dutchess or Suffolk Counties
(b) only Westchester or Dutchess Counties
(c) only Nassau or Suffolk Counties
(d) only Westchester or Nassau Counties.
Answer: (d)
CPLR 3110(2) provides that a non-party may be required to appear for a deposition within the county in which (i) he resides, (ii) he is regularly employed or (iii) he has an office for the regular transaction of business. Thus, choice (d) is correct.
CPLR 3110
For a public corporation or an officer, employee or agent of such corporation, the place of an examination before trial (i.e., a deposition) shall be:
(a) the county where the public corporation has its main office
(b) the county in which the action is pending
(c) any county in which the public corporation has an office
(d) any county in which an officer, employee or agent of the public corporation resides.
Answer: (b)
CPLR 3110(3) provides that a public corporation (e.g., a government agency) or an officer, employee or agent of such corporation may be required to appear for a deposition within the county in which the action is pending. The place of examination is in the office of any of the attorneys for such corporation or any officer, agent or authorized employee, unless otherwise stipulated. Thus, choice (b) is correct.
CPLR 3111
In the event a non-party witness is subpoenaed to produce books, papers or other things, which of the following applies as to defraying the expenses of producing such things:
(a) The non-party witness must absorb the costs or risk an order holding him in contempt.
(b) The non-party witness is entitled to receive a statutory fee of five dollars, payable by the party seeking discovery.
(c) The non-party witness is entitled to receive reasonable expenses, payable by the prevailing party.
(d) None of the above.
Answer: (d)
CPLR 3111 provides that reasonable production expenses of a non-party witness must be defrayed by the party seeking discovery.
CPLR 3112
All errors and irregularities in a notice for taking a deposition are waived unless at least _______ days before the time for taking the deposition written objection is served upon the party giving the notice.
(a) two
(b) three
(c) five
(d) seven
(e) ten.
Answer: (b)
CPLR 3112 provides that three days is the applicable time limit. Thus, choice (b) is correct.
CPLR 3113
Which of the following may serve as an officer before whom a deposition within the State may be taken:
(a) an attorney for a party
(b) a notary public
(c) both (a) and (b) are correct
(d) neither (a) nor (b) is correct.
Answer: (b)
CPLR 3113(a) provides that a deposition within the State may be taken before a person authorized by the laws of the State to administer oaths (e.g., a notary public). However such person cannot be an attorney for a party, the attorney’s employee, or anyone who would be disqualified by interest, blood or affinity from serving as a juror in the case. Thus, choice (b) is the only correct answer.
CPLR 3113
With respect to a deposition:
(a) questions may be asked only by the party scheduling the proceeding
(b) examination and cross-examination of deponents shall proceed as permitted in the trial of an action in open court, except that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his client
(c) cross-examination is limited to the subject matter of the direct examination
(d) none of the above.
Answer: (b)
CPLR 3113(c) provides that at a deposition the examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. Thus, choice (b) is correct and choice (a) is incorrect. Additionally, the statute provides that cross-examination need not be limited to the subject matter of the examination in chief (i.e., the direct examination). Thus, choice (c) is incorrect.
NOTE: The parties may stipulate that a deposition be taken by telephone or other remote electronic means.
CPLR 3114
If a witness to be deposed does not understand English:
(a) there can be no deposition
(b) the examining party must provide a translation of all questions and answers at his own expense
(c) the court provides an official interpreter
(d) the cost of an interpreter is shared equally by all the parties.
Answer: (b)
CPLR 3114 provides that if the witness to be examined does not understand the English language, the examining party must, at his own expense, provide a translation of all questions and answers. Thus, choice (b) is the correct answer.
CPLR 3115
With regard to the admissibility at trial of a deposition:
(a) such evidence is never admissible
(b) errors and irregularities which might have been obviated if objection were promptly presented are waived unless a reasonable objection is made at the time of taking the deposition
(c) all errors and irregularities are waived unless an objection is made at the time of taking the deposition
(d) none of the above.
Answer: (b)
CPLR 3115(b) provides that errors and irregularities which might have been obviated if objection were promptly presented, are waived unless a reasonable objection is made at the time of the taking of the deposition. Thus, choice (b) is correct.
CPLR 3116
Unless the court orders otherwise, the expense of a deposition is on:
(a) the court
(b) the parties, in equal shares
(c) the party taking the deposition
(d) the witness, if the witness is a party.
Answer: (c)
CPLR 3116(d) states that unless the court orders otherwise, the party taking the deposition shall bear the expense thereof. Thus, choice (c) is correct.
CPLR 3116
If a witness wishes to change in form or substance his deposition as submitted to him for signature:
(a) he should schedule another deposition session for this purpose
(b) he should simply refuse to sign it
(c) he should note his changes, and the reasons for making them, at the end of the deposition
(d) he should make the changes by crossing out the material he objects to, and inserting his changes in its place.
Answer: (c)
CPLR 3116(a) provides that any changes in form or substance of the deposition which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them.
CPLR 3117
Select all correct answers.
The deposition of any person may be used by any party against any other party who was represented at the taking of the deposition, if
(a) the witness is dead
(b) the witness is out of State
(c) the witness is unable to testify because of imprisonment
(d) the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts.
Answers: (a), (b), (c) and (d)
CPLR 3117(a)(3) clearly indicates that choices (a), (b), (c) and (d) are all correct. This provision constitutes an exception to the hearsay rule (i.e., an out of court statement generally cannot be offered to prove the truth of the matter asserted therein).
