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Ziolkowski v Han-Tek, Inc.,

___ AD3d ___, 2015 NY Slip Op 02578 [4th Dept., 2015]

This was a workplace injury case, and the defendant Zynergy Solutions had moved to compel disclosure of certain documents by the plaintiff’s accountant, asserting that they were relevant to the plaintiff’s lost-wages claim. The motion was denied. The accountant was then deposed, and the defendant Han-Tek served a subpoena for the same documents. Plaintiff moved to quash, on the basis that the first order constituted the law of the case. Supreme Court granted the motion to quash.

The Fourth Department reversed. The deposition provided further evidence, making the law of the case doctrine inapplicable. Note, also, the recent determination of the Court of Appeals in Matter of Kapon v Koch, that one seeking to avoid disclosure by a non-party must show that the material or testimony sought is “utterly irrelevant.”

When a non-party witness is deposed, is there any place in the deposition room for the witness’ counsel? In two cases, Thompson v Mather, and Sciara v Surgical Assoc., the Fourth Department took a hard line against any participation by counsel for the witness. The court read CPLR 3113 as denying counsel any right to participate in any way, and as most definitely denying counsel any right to object on any ground, whether based on privilege or otherwise.

Effective September 23, 2014, CPLR 3113 (c) has now been amended so as to overrule this line of cases. A new sentence has been added, allowing counsel for a non-party deponent to participate in the deposition and make objections on behalf of the deponent in the same manner as counsel for a party. Read More