Phillips Nizer LLP Articles

Pretrial Stages of the Civil Case - New York County Lawyers Association

I. Introduction

(The following article was written in April, 1994. Changes in the law since that time have not been incorporated in this text.)

In connection with all litigation planning, the court and system to handle the case must be borne in mind from the beginning. You may have a choice as to federal or state, or between different states or different districts. That choice should be made knowledgeably depending on the parties, the nature of the dispute, and other factors. If the suit is brought in a jurisdiction that assigns individual judges, you should determine how the assignment is made and whether there is any manner of affecting the assignment. Once the judge is assigned, you should learn everything possible about that judge.

A. New York State.

The Individual Assignment System ("IAS") administers the assignment of cases in the Supreme, County, and Family Courts of New York State. Case assignment to a judge under IAS is triggered by filing a request for judicial intervention ("RJI") when a party files a motion, order to show cause, note of issue or request for preliminary conference. Once the case is assigned to a judge, a conference may be called for the purpose of hearing the motion, discussing discovery that remains to be completed, settlement or any other matters that the court may deem relevant. State court judges have their own rules with respect to motion practice. The rules for each Bronx, Brooklyn and Staten Island judge are printed in the Monday editions of The New York Law Journal. In order to keep abreast of the frequent changes in these rules it is necessary, if not imperative, to check the "Court Notes" section of the Law Journal to obtain the notices from the clerks of the Courts. The rules for all judges may be obtained from the IAS motion support office in each county courthouse. (The IAS Rules may be found in Part 202 of the Uniform Rules for the New York State Trial Courts, McKinney, New York Rules of Court, (1992), pp. 169 et seq. The Rules should be consulted.)

In the Supreme Court in New York County, all motions brought on by notice of motion, in both unassigned and assigned cases shall be made returnable in the Motion Support Office Courtroom at 9:30 a.m. any business day of the week. The original moving papers must be delivered to the Motion Support Office at least five business days prior to the return date and opposition and reply papers will be submitted on the return date. All motions returnable upon a particular day will be called for submission and motions not adjourned or withdrawn shall be marked "submitted." It will not be required for counsel to appear.

After the motion is submitted in the Motion Support Office Courtroom, the assigned Justice will determine whether to accept a particular motion on submission, to require oral argument or to hold a conference. Counsel who wish oral argument should conspicuously note the request on the front of their papers. Notice of the date and time of argument scheduled pursuant to the counsel/parties' request or on the court's initiative will appear in the New York Law Journal and will be sent. In the absence of such notice, the motion shall be determined by the Court as a submitted motion.

Further, if oral argument of a motion brought on by order to show cause is sought, counsel should so indicate on the front of the proposed order. Should the proposed order to show cause be signed, the Justice shall decide whether argument is appropriate and if so, will so indicate in the order. For additional details, see New York County Supreme Court's tentative operating statement. There have also been changes regarding discovery motions and preliminary conferences and the tentative operating statement should be consulted for the details.

Four new commercial parts have recently been added to the Supreme Court. Pending cases are being transferred to these commercial parts from among "contract" and "other tort commercial" cases, although it is not clear how these cases are categorized. Attorneys in new cases must complete categorization sheets stating whether the matter is a commercial case and, if so, what kind. The cases are randomly assigned to these new parts, apparently based upon the information in the categorization sheets. See New York County Supreme Court's tentative operating statement; Franklin, Commercial Parts Open, N.Y.L.J., Dec. 31, 1992, at 5, col. 2.

B. Federal Courts.

The federal courts are on an individual assignment system, nationally. The judge is assigned at random at the time the summons and complaint are filed. If two or more cases contain common questions of law and fact, the later cases may come before the same judge pursuant to the Rules regarding related cases.

Related cases are defined as ones which present common questions of law and fact or substantially similar transactions. See Rules For the Division of Business Among District Judges, Southern District Rules 4(a), 4(b) and 15; Eastern District Rule 50.3 (McKinney, New York Rules of Court, (1993) at pp. 793 et seq.) The Eastern District rule adds to this definition cases regarding the validity or infringement of a patent. Both the Southern District and Eastern Districts of New York require that the litigant give notice to the court of related cases.

Pursuant to the present rules the litigant is required to notify the court that two or more cases in that court may be related. In the Southern District the attorney is not required to notify adversaries in the first instance that two or more cases may be related. See Rule 4(a), 4(b) and Rule 15. Eastern District Rule 50.3(d) requires the attorney to designate on the cover sheet which cases are related and imposes a continuing duty upon the attorney to inform the clerk of the court of such related cases.

The New York State Bar Association Committee on the Federal Courts publishes Individual Judges Rules (NYSBA 1988), a compendium of the individual rules of each federal district court judge sitting in New York State.

C. Finding out about the Assigned Judge.

The Almanac of the Federal Judiciary Vol. 1 (Prentice Hall Law & Business 1993), gives a short description of each federal trial judge's background and perceived idiosyncrasies. Lexis and Nexis are also excellent sources for obtaining information regarding both federal and state court judges. Martindale-Hubbell may also be of use. Colleagues may be the best source of information.

Every lawyer in every case should want to know as much as possible about the assigned judge. This is your most important audience.

II. Preliminary Planning, Drafting and Pleadings

A. The Initiation Of An Action.

1. State Court Proceedings.

a. The Summons.

(i) As a result of an important reformation of New York practice effective July 1, 1992, an action is now commenced by filing the summons and complaint or summons with notice with the clerk of the court [CPLR 304]. At that time, and upon payment of the statutory fee, an index number is assigned to the case [CPLR 306-a]. This recent requirement is a significant change from the previous practice of filing the summons and complaint or notice after it was served, almost as a mere formality. It also brings New York law in conformity with the practice of the rest of the states.

(ii) The summons must be accompanied by either a complaint or notice. The notice must state the nature of the action, relief sought and amount for which judgment may be taken in case of default. [CPLR 305(b)]. The summons must specify the basis for venue and if it arises from a consumer credit transaction, then "consumer credit transaction" must be prominently displayed at the top of the summons. Note: Starting an action without a complaint may be interpreted as not being serious.

(iii) The summons, when served, must bear the index number assigned and the date of filing with the clerk of the court. [CPLR 305].

(iv) The proof of service of the summons and complaint or notice must be filed with the clerk of the court within 120 days after the summons has been filed (or filed within 15 days if the statute of limitations is 4 months or less) [CPLR 306-b(a)]. If the proof has not been timely filed, and a defendant has not appeared, then the action will be dismissed as to that defendant without prejudice. [CPLR 306-b(b)]

(v) In response to a summons without a complaint, the defendant, within time for filing appearance [CPLR 320(a)], may demand a copy of the complaint. This extends time to appear until 20 days after service of the complaint. The complaint must be served within 20 days after service of either demand for complaint or notice of appearance. [CPLR 3012(b)]. Service of a notice of appearance in response to summons alone does not waive the right to contest jurisdiction.

b. Service by Mail.

(i) As an alternative method of personal service, a summons and complaint or notice may be served by first class mail. See CPLR 312-a. This section is patterned after Fed. R. Civ. P. 4.

(ii) In addition to the summons and complaint or summons and notice, two copies of a statement of service by mail and acknowledgement of receipt must also be served on the defendant. [CPLR 312-a]. The statement and acknowledgement must be in the same form as is given in CPLR 312-a(d).

(iii) The defendant must complete the acknowledgement and mail (in a return envelope, postage prepaid and addressed, by the plaintiff) or deliver a copy within thirty days from date of receipt. Note: Service is complete on the date the signed acknowledgement of receipt is mailed or deliver to the sender. [CPLR 312-a(b)]. If defendant does not acknowledge, then the service is void and the costs of serving defendant in another manner will be assessed against defendant. [CPLR 312-a(d)].

(iv) Aspects of CPLR 312-a to keep in mind:

(A) Service may be made by plaintiff, plaintiff's attorney or attorney's employee.

(B) Service may be mailed anywhere you think defendant is. (This includes out-of-state service although you still must have grounds for long arm jurisdiction).

(C) This manner of service may be used without resorting first to another method.

(D) May not be used for service on infants or incompetents.

(E) Do not use if you have less than six months left on the statute of limitations. Service depends upon the cooperation of the defendant and sufficient time should be left to serve defendant in another manner should defendant refuse to acknowledge the service or use delaying tactics.

c. The Complaint.

(i) Plaintiff bears the burden of proving each allegation. Depending upon the situation, some complaints should recite only the "bare bones" of the matter and simply make a prima facie case. In other instances, it will make sense to tell a story -- even including allegations that are more evidentiary in nature.

(ii) The factual basis for long arm jurisdiction must be specifically pleaded in the complaint to avoid dismissal. Teplin v. Manafort, 81 A.D.2d 531 (1st Dep't 1981).

(iii) Certain other allegations must be pleaded with particularity, e.g., fraud, mistake [CPLR 3016(b)]; the words complained of in a defamation action [CPLR 3016(a)]; the substance of foreign law relied on [CPLR 3016(e)]; in personal injury action, that plaintiff has a serious injury or economic loss sufficient to overcome no fault ceiling [CPLR 3016(g)]. Note: In an action for goods sold and delivered or for services rendered, if each item of claim and reasonable value or agreed price is specifically numbered in verified complaint, then the defendant must respond specifically, in a verified answer. [CPLR 3016(f)].

(iv) In medical, dental and podiatric malpractice actions, plaintiff's attorney must submit with the complaint a certificate of merit in which he states that he has consulted with at least one physician, dentist or podiatrist and that on the basis of such consultation, the attorney believes that there is a reasonable basis for commencement of the action. [CPLR 3012-(a)].

d. Plaintiff should also consider the availability of the provisional remedies of attachment [CPLR Art. 62], preliminary injunction [Art. 63], receivership [Art. 64], lis pendens [Art. 65] and replevin [Art. 71]. See Point I.A.3., infra.

e. Plaintiff should be aware of the requirements for special proceedings. [CPLR Art. 4 and Art. 78].

f. A notice of claim must be served within 90 days after a tort claim arises (or in wrongful death actions, within 90 days after appointment of a representative of decedent's estate), where an action or special proceeding is commenced against a public corporation. [General Municipal Law 50-e].

g. If plaintiff is an infant, see procedures in CPLR 1201 et seq.

h. Consider whether complaint must be verified, e.g., CPLR 3016(f); CPLR 1502.

i. An action based on an instrument for payment of money only, or on a judgment, may be commenced with summons in lieu of complaint together with notice of motion for summary judgment and supporting papers. [CPLR 3213].

j. Consider whether a class action can be maintained. [CPLR Article 9].

2. Federal Court Proceedings

a. The Summons.

In federal court, the rules regarding service by mail have been amended effective December 1, 1993. The amendments are contained in Fed. R. Civ. P. 4(d), Waiver of Service; Duty to Save Costs of Service; Request to Waive.

Under the amendments, most defendants now have a statutory duty "to avoid unnecessary costs of serving the summons." Fed. R. Civ. P. 4(d)(2). To avoid such costs, the plaintiff may notify the defendant by first-class mail or other reliable means," including facsimile, of the commencement of the action and request that the defendant waive service of a summons. The defendant who waives service does not thereby waive any objection to venue or personal jurisdiction. If the defendant does not comply with the request the court "shall impose" the costs of effecting traditional service.

A domestic defendant who timely returns a waiver is required to serve an answer within 60 days after the date that the request for waiver was sent. Fed. R. Civ. P. 4(d)(3). When the plaintiff files the waiver with the court the action will proceed as though the plaintiff had served the summons and complaint at that time, and no proof of service is required.

In addition, the new Rule 4 authorizes the use of any means of service permitted not only by the law of the forum state, but also by the state in which the defendant is served. Fed. R. Civ. P. 4(e)(1).

b. Commencement of the Action.

(i) A civil action is commenced by filing the complaint with the court. [Fed. R. Civ. P. 3].

(ii) The complaint shall contain a short and simple statement of jurisdiction, a statement of claim showing the pleader is entitled to relief, and a demand for judgment. [Fed. R. Civ. P. 8(a), (e)].

(iii) Pleading special matters - Fed. R. Civ. P. 9 (a) capacity; (b) fraud - required to be plead with particularity; see Decker v. Massey Ferguson Ltd., 681 F.2d 111 (2d Cir. 1982); (c) conditions precedent; (g) special damage; (h) admiralty and maritime claims.

(iv) Provisional remedies, e.g., temporary restraining orders, preliminary injunction. [Fed. R. Civ. P. 64-66]. See Point I.A.3., infra.

(v) Class Actions must meet numerosity, common question of law or fact, typicality of claim, and representative class requirements. [Fed. R. Civ. P. 23].

3. Provisional Remedies. [CPLR Art. 62 through 65 and 71; Fed. R. Civ. P. 64-66]. Provisional remedies afford the plaintiff protection during the course of the action.

a. Attachment. [Art. 62; Fed. R. Civ. P. 64].

(i) Defendant's property is held, actually or constructively, by the sheriff to apply to the judgment should the plaintiff win. [CPLR 6203].

(ii) Attachment may be used when:

(A) Defendant is a nondomiciliary residing outside the state or is a foreign corporation not qualified to do business in New York; or

(B) Despite diligent efforts, a resident defendant cannot be served; or

(C) Defendant, with intent to defraud his creditors or frustrate the enforcement of possible judgment for plaintiff, seeks to move his property out of the state;

(D) The cause of action is based on a judgment from another state or federal court that is entitled to full faith and credit. [CPLR 6201].

(iii) An order of attachment may be granted before or after service of a summons, and any time before judgment. [CPLR 6211].

(iv) In response to concerns over the defendant's rights to due process when plaintiff makes the motion ex parte, the CPLR provides that when the order is issued ex parte, within 10 days after the attachment is levied, plaintiff must make a motion on notice to confirm the attachment. [CPLR 6211(b)]. This affords the defendant a prompt opportunity to vacate the attachment.

(v) The more common practice, however, is for the plaintiff to make a motion on notice for attachment and at the same time move by order to show cause for a temporary restraining order prohibiting the transfer of assets until the hearing. [CPLR 6210]. This method will defeat any argument that defendant's constitutional rights have been violated.

(vi) Federal courts apply the New York law.

b. Injunction. [Art. 63; Fed. R. Civ. P. 65].

(i) This provision offers the dual remedies of preliminary injunction and temporary restraining order. A preliminary injunction is used to stop a defendant from committing an act that would violate the plaintiff's rights and make the judgment ineffectual. A temporary restraining order may be granted to cover the interim period before the notice of motion for the preliminary injunction is heard, if it appears that immediate and irreparable injury would result if defendant was not restrained. This is customarily done by an order to show cause. [CPLR 6301; Fed. R. Civ. P. 65].

(ii) A motion for preliminary injunction must be made on notice. [CPLR 6311; Fed. R. Civ. P. 65(a)(1)].

(iii) A temporary restraining may be granted, without notice, at the time the party moves for a preliminary injunction. [CPLR 6313; Fed. R. Civ. P. 65(b)]. However, in federal court the order is valid for only 10 days, (unless it is later extended) [Fed. R. Civ. P. 65(b)].

(iv) In order to obtain a preliminary injunction, the plaintiff shall post a bond in an amount to be determined by the court with the provision that if the plaintiff was not entitled to the injunction, the bond will be used to pay the defendant for damages due to the injunction. [CPLR 6312(b); Fed. R. Civ. P. 65(c)].

c. Receivership. [Art. 64; Fed. R. Civ. P. 66].

(i) This remedy is used in civil nonbankruptcy actions. It is permitted only when there is some property that is the "subject of an action."

(ii) The court appoints an individual to care for the property during the litigation. [CPLR 6401(a)].

(iii) A motion for receivership must be made on notice and may be made before or after the action has begun. [CPLR 6401(a)].

(iv) Note: Without resorting to Fed. R. Civ. P. 66, the court may appoint a receiver pursuant to its powers of equity. See Securities and Exchange Commission v. Koenig, 469 F.2d 198 (2d Cir. 1972).

d. Notice of Pendency. [Art. 65].

(i) Gives the world constructive notice that plaintiff has some claim with regard to the real property and everyone on notice must take subject to that interest. [CPLR 6501].

(ii) Used only in actions that "affect title to, or the possession, use or enjoyment of, real property." [CPLR 6501].

(iii) May be filed with clerk before or after commencement of the action. [CPLR 6511]. Note: If filed before the suit is commenced, defendant must be served within 30 days of the filing for the notice of pendency to be valid. [CPLR 6512].

e. Replevin (Recovery of Chattel). [Art. 71].

(i) May be brought to try the right to possession of a chattel. [CPLR 7101].

(ii) Generally the motion for an order of seizure is brought on notice, however, if plaintiff seeks an order of seizure without notice he must establish that unless the order is granted without notice, it is probable the chattel will become unavailable for seizure. [CPLR 7102(c)].

(iii) Once the order is granted the sheriff seizes the property from the defendant and holds it for 10 days. At the end of that time the sheriff turns it over to the plaintiff unless defendant: (a) notices an exception to plaintiff's surety; (b) moves for an impounding or returning order; or (c) presents the papers necessary to reclaim the chattel. [CPLR 7102(f)].

(iv) A motion for seizure may be made before or after the action is commenced. If made before the action is commenced and the motion is granted, then a copy of the summons and complaint must be served by the sheriff on the defendant with the seizure papers. [CPLR 7102(a)].

B. After The Complaint Has Been Served, The Defendant Should Address The Following Issues:

1. Should a pre-answer motion be made? See Point III, infra.

2. If defendant is going to answer rather than move, the following issues should be considered:

a. State Court:

(i) Are specific and particular responses to complaint allegations required? E.g. denial of performance of conditions precedent in a contract action [CPLR 3015(a)]; in an action for goods sold and delivered or services rendered, a denial of the disputed items, of the nature of the dispute and of the reasonable value or agreed price if not pleaded, are deemed admitted. [CPLR 3016(f)].

(ii) Verification of an answer is necessary when a complaint is verified [CPLR 3020(a)]; or alleges fraud; or is against a corporation for non-payment of a promissory note. [CPLR 3020(b)].

(iii) Jurisdiction.

(A) Is there personal jurisdiction over the defendants? [CPLR 301, 302].

(B) Is there jurisdiction over the subject matter? See CPLR 3211(a)(2) (motion to dismiss).

(C) Is the action brought in the appropriate state forum? [CPLR 325].

(D) Should the action be removed? [CPLR 326].

(E) Is there a more convenient forum for the case to be litigated? [CPLR 327].

(iv) Are there affirmative defenses and/or cross-claims and/or counterclaims?

(A) Affirmative defenses must be pleaded specifically. CPLR 3018(b) contains a non-exclusive list of affirmative defenses.

(B) No response is needed to a cross-claim unless demanded in that pleading. [CPLR 3011].

(C) There is no requirement for pleading counterclaims. Plaintiff must reply to a counterclaim within 20 days. [CPLR 3019].

(v) Is venue proper? The objection is waived if motion to change is not made with or prior to the answer. [CPLR 511(a)].

(vi) Should third parties be impleaded? [CPLR 1007]. If so, plaintiff has 20 days after service of third party defendant's answer on his attorney to sue him directly. [CPLR 1009].

(vii) Joinder of parties. Are all parties necessary to the action in the case? All parties who are necessary to the just adjudication of the matter should be joined. If a person who should be joined as a plaintiff refuses to do so, he may be joined as a defendant. [CPLR 1001(a)]. CPLR 1002 allows permissive joinder of parties plaintiff. Misjoinder is not a ground for dismissal. [CPLR 1003]. Nonjoinder is a ground for dismissal without prejudice unless the court does not have jurisdiction over the person and allows the action to proceed without that person. [CPLR 1001(b)].

(viii) Amendments to pleadings without court leave may be made only once and must be within 20 days after service of pleading, or before response period expires or within 20 days after service of a responsive pleading. [CPLR 3025(a)].

b. Federal Court:

(i) Specificity in pleading requires that a claim or denial of performance or occurrence of a condition precedent shall be made specifically and with particularity. [Fed. R. Civ. P. 9(c)].

(ii) A pleading need not be verified unless required by specific statute. [Fed. R. Civ. P. 11].

(iii) Jurisdiction. Is this a federal question (28 U.S.C. § 1331) or diversity case (28 U.S.C. § 1332) ; should removal be sought pursuant to 28 U.S.C. § 1441?

(iv) Affirmative defenses, counterclaims and cross-claims.

(A) Fed. R. Civ. P. 8(c) contains a nonexclusive list of affirmative defenses.

(B) Fed. R. Civ. P. 13(a) requires the pleading of compulsory counterclaims. A counterclaim must be answered within 20 days, or within 60 days after the date when a request for waiver of service of summons was sent. [Fed. R. Civ. P. 12(a)(1)(A). In the event that the counterclaim is not answered, it shall be deemed admitted.

(C) A cross-claim must be responded to within 20 days. [Fed. R. Civ. P. 12(a)(2)].

(v) Venue in Federal court actions is governed by 28 U.S.C. § 1391. Fed. R. Civ. P. 41(b) provides for dismissal of action based upon improper venue.

(vi) Joinder of parties. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction shall be joined as a party if complete relief cannot be accorded to parties in person's absence or party to be joined has an interest in the action. [Fed. R. Civ. P. 19(a)]. Fed. R. Civ. P. 20 allows permissive joinder of parties plaintiff. Under Fed. R. Civ. P. 21 misjoinder is not a ground for dismissal. If a necessary party is not joined, the action may be dismissed but it is not an adjudication on the merits. [Fed. R. Civ. P. 41(b)].

C. Sanctions.

1. State Court. In A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1 (1986), the Court of Appeals held that state courts could not impose sanctions upon an attorney or litigant who asserted a frivolous claim or engaged in frivolous pretrial procedures absent statute or court rule authorizing the imposition of such sanctions. CPLR Article 81 authorizes the court to use its discretion in imposing or denying costs to a successful or unsuccessful litigant. Article 82 sets forth the amount of costs that may be awarded. Article 83 authorizes the payment of disbursements to a party. In real property actions, a plaintiff has the right to an additional statutory allowance. [CPLR 8302]. In certain circumstances the court has the discretion to award an additional statutory allowance to any party which includes, e.g., actions to foreclose a mortgage upon real property; for partition of real property; involving construction of a will or inter vivos trust instrument. [CPLR 8303]. CPLR 8303-a authorizes costs upon frivolous claims and counterclaims in actions to recover damages for personal injury, injury to property or wrongful death and in podiatric, dental and medical malpractice actions. It should be noted that one court has recently concluded that the language of CPLR 8303-a allows sanctions of $10,000 per claim rather than per action. See Matter Of Entertainment Partners Group, Inc., 155 Misc. 2d 894 (Sup. Ct. New York County 1992) (Lebedeff, J.). Recent New York State regulations strengthen the remedies for frivolous activity by attorneys. Since January 1, 1989, state trial courts can impose monetary sanctions up to $10,000 for lawyers' frivolous conduct See 22 NYCRR § 130 (Uniform Rules, New York State Trial Courts). Section 130.1 defines frivolous conduct and allows an award to a party or attorney of costs, i.e. expenses and fees resulting from another lawyer's frivolous conduct, except for cases subject to the provisions of CPLR 8303-a.

2. Federal Courts. Fed. R. Civ. P. 11 demands that all pleadings, motions and other important papers be signed by an individual attorney. This constitutes certification that, to the best of his knowledge, information and belief, formed after reasonable inquiry, the pleading is well-grounded in fact and warranted by law. Sanctions may be imposed for violation. See, e.g., Azuma, N.V. v. Sinks, 646 F. Supp. 122 (S.D.N.Y. 1986).

Rule 11 has been amended effective December 1, 1993, in response to criticism that the prior rule had unfairly impacted plaintiffs and discouraged novel claims. The new Fed. R. Civ. P. 11(c)(1)(A) permits a 21-day "safe harbor," during which the challenged paper may be withdrawn or corrected. The 21-day period is brought on by a formal motion for sanctions by the objecting party.

The Second Circuit has held that lawyers who file actions in federal courts have a continuing duty under Rule 11 to remove from their pleadings all claims which they later discover to be lacking basis in fact or law. See Yonkers v. Otis Elevator Co., 844 F.2d 42 (2d Cir. 1988) (costs of motion of $5,000 awarded for necessity of preparing a summary judgment motion on claims which had no basis in fact) overturning Oliveri v. Thompson, 803 F.2d 1265 (2d Cir. 1986) (standard is good faith at time of interposing complaint). In addition, the amended Rule 11 authorizes the imposition of sanctions if a lawyer reaffirms to the court, either in later papers or orally, positions taken in those papers after learning that they are no longer viable. Fed. R. Civ. P. 11(b). See also 28 U.S.C. § 1927 which allows a federal court to order an attorney to pay any costs, expenses and attorney fees where the lawyer's conduct unreasonably and vexatiously extends court proceedings.

Finally, and significantly, the amended Rule 11 broadens the category of persons subject to its sanctions. Where, before, sanctions could be imposed only upon the individual lawyer signing a paper and the party, the amended rule provides that "Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees." Fed. R. Civ. P. 11(c)(1)(A)

D. Plaintiff And Defendant at This Stage Should Ask the Following Questions:

1. What are the disputed issues of fact and law?

2. How should these issues be resolved?

a. Can/should we settle this case?
b. If not, are there any motions addressed to the pleadings which should be made? Is discovery necessary?

III. Pre-Pleading Motions

A. Motions addressed to the pleadings must be made before responsive pleading is due. [CPLR 3211(e); Fed. R. Civ. P. 12(b)]. In state court, but not in federal court, a motion addressed to the pleadings automatically stays discovery until the determination of the motion. [CPLR 3214(b)].

1. Lack of personal jurisdiction, e.g., the propriety of invocation of the long arm statute, CPLR 302. [CPLR 3211(a)(8) and Fed. R. Civ. P. 12(b)(2)]. See Peterson v. Spartan Indust., Inc., 33 N.Y.2d 463 (1974) (hearing required). Note: Defense of lack of jurisdiction is not waived by stipulation extending time to answer. Graham v. Sylvan Lawrence Co., 82 A.D.2d 980 (3d Dep't 1981). An objection to personal jurisdiction should be asserted as soon as possible. A defense on that basis is waived if not raised in a motion to dismiss that is made by defendant prior to answering. See Addesso v. Shemtob, 70 N.Y.2d 689 (1987).

2. Improper service of process. [CPLR 3211(a)(8) and Fed. R. Civ. P. 12(b)(4) & (5)].

3. Failure to join an indispensable party. [CPLR 3211(a)(10) and Fed. R. Civ. P. 12(b)(7).

4. Statute of limitations, statute of frauds, res judicata, etc. [CPLR 3211(a)(5)].

5. Inconvenient Forum [CPLR 327(a) and Fed. R. Civ. P. 12(b)(3) (See transfer provision in 28 U.S.C. § 1404(a)]. See Lehrer v. J.A. Procope & Co., 35 A.D.2d 794 (1st Dep't 1970). CPLR 327(b) precludes a motion to stay or dismiss for inconvenient forum an action arising from a contract subject to General Obligations Law § 5-1402 (i.e., a contract for not less than $1,000,000) and where parties have agreed that New York law will govern.

6. Failure to state a cause of action [CPLR 3211(a)(7) and Fed. R. Civ. P. 12(b)(6)].

a. CPLR 3211(e) provides that a party may make no more than one motion pursuant to 3211(a). Fed. R. Civ. P. 12(g) is similar.

b. In New York practice a motion based upon 3211(a)(7) addressed to one allegation in the pleading will not preclude subsequent motions based upon subsection (a)(7) addressed to other allegations. Bustop Shelters, Inc. v. City of New York, N.Y.L.J., April 15, 1979, p. 13, col. 2 (Sup. Ct. New York County) (Stecher, J.). B. Jury Demand.

1. In state court, a jury demand is made in the note of issue filed after discovery is completed. If a party does not request a jury the opposing party has 15 days from service of note of issue to file jury demand. [CPLR 4102(a)].
2. In federal courts, the jury must be demanded not later than 10 days after service and filing of last pleading directed to the jury issue. The demand is normally asserted in the pleading. [Fed. R. Civ. P. 38(b)]. It may be wise therefore to request a jury in the first pleading interposed by the party.

C. Summary Judgment. [CPLR 3212; Fed. R. Civ. P. 56].

In state court, issue must first be joined (this is strictly enforced: see City of Rochester v. Chiarella, 65 N.Y.2d 92 (1985), but see CPLR 3211(c)); in federal court, the motion may be made at any time. Traditionally, summary judgment was more readily available in state, rather than federal, court. However, federal courts have become increasingly receptive to the use of summary judgment motions since a trilogy of Supreme Court decisions issued in 1986 reformulated summary judgment doctrine and practice to facilitate their application. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex v. Catrett, 477 U.S. 317 (1986). When contemplating a summary judgment motion:

1. One test as to whether such a motion is advisable is to inquire what harm could come out of a denial of the motion; and whether the judge could say anything to injure the movant's case. Federal courts are analyzing trial burdens of proof in deciding these motions, Celotex v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988), which is sensible, and should be argued in state cases as well.

2. Will it be more appropriate after limited discovery has been had? [Note: the court may deny the motion in order to permit discovery with respect to the issues raised -- CPLR 3212(f); Fed. R. Civ. P. 56(f)].

3. Immediate trial may be ordered in certain circumstances. [CPLR 3212(c)].

4. Partial summary judgment may be granted. [CPLR 3212(e); Fed. R. Civ. P. 56(a) and (b)].

D. Failure to Observe Time Limitations.

1. A plaintiff who fails to respond timely to pleadings or motion papers may have his complaint dismissed. [CPLR 3012(b) and 3126]. A defendant similarly may suffer a default judgment. [CPLR 3215(a) and 3126; see Fed. R. Civ. P. 55].

2. To vacate a default in state actions, a party must demonstrate: (a) a valid excuse; (b) a meritorious claim or defense; and (c) a lack of prejudice to the opponent. Kraus Bros. v. L.V. Hoffman & Co. Inc., 99 A.D.2d 401 (1st Dep't 1984); Batista v. St. Luke's Hospital, 46 A.D.2d 806 (2d Dep't 1974). CPLR 2005, 3012(d). The affidavit of merit must be by someone having actual knowledge of facts -- not the attorney. Grieshaber v. City of New Rochelle, 113 A.D.2d 821 (2d Dep't 1985).

3. In federal court actions a default may be set aside for good cause shown [Fed. R. Civ. P. 55(c)] and if a judgment by default has been entered, may likewise be set aside in accordance with Fed. R. Civ. P. 60(b).

IV. Discovery

A. Devices of Disclosure -- An Overview.

1. Bill of Particulars [CPLR 3041-44]. Technically this is a pleading device but is often used for limited discovery purposes. In addition, it limits the allegations of the pleadings. Litigants should be aware that the raising of an affirmative defense will subject the party to a demand for a bill. A bill of particulars must be verified where demanded or where initial pleading is verified. Note: No federal equivalent.

2. Interrogatories are only available as to parties. [CPLR 3130-33 and Fed. R. Civ. P. 33].

3. Notices For Discovery and Inspection are available as to parties and non-parties. [CPLR 3120 and Fed. R. Civ. P. 34 and 45]. See also V. infra.

4. Depositions on Written Questions may also be taken of non-parties by use of subpoena. [CPLR 3108-09; and Fed. R. Civ. P. 31 and 45].

5. Depositions on Oral Questions may be taken of both parties and non-parties. [CPLR 3107 and Fed. R. Civ. P. 27-30].

6. Physical and Mental Examinations are available only as to parties. [CPLR 3121 and Fed. R. Civ. P. 35].

7. Requests for Admissions are available only as to parties. [CPLR 3123 and Fed. R. Civ. P. 36].

8. Southern District, New York, Civil Rule 47 establishes uniform definitions in discovery requests.

B. Preparing For Discovery.

1. Discovery starts when you first learn of the dispute.

2. Discovery is the theater for attempts to settle actions. To obtain a favorable settlement you must convince your adversary's attorney of the merits of your case. You may, however, have a few aces you wish to keep hidden for as long as possible.

3. The knowledge that discovery may take place should guide litigants in their preparation and handling of documents.

a. In the preparation and handling of documents, make sure that all available privileges are identified: (1) attorney-client [CPLR 4503]; (2) doctor, dentist, nurse-patient [CPLR 4504]; (3) clergy-penitent [CPLR 4505]; (4) material obtained by illegal eavesdropping [CPLR 4506]; (5) client-psychologist [CPLR 4507]; (6) client-social worker [CPLR 4508]; (7) husband-wife [CPLR 4502]; (8) matters within reporter's "shield law" [N.Y. Civil Rights Law 79-h]; (9) qualified records of hospital review committees (N.Y. Educ. Law 6527); (10) privilege against self-incrimination [CPLR 4501]; and (11) an attorney's work product [CPLR 3101(c)].

b. In state law claims brought in federal court, the existence of a privilege is determined by applicable state law; in federal actions, federal common law applies. [F.R. Evid. 501].

c. A qualified privilege exists for materials prepared for litigation. However, since the privilege is qualified, the material is discoverable if needed for the case and is not otherwise obtainable without undue hardship. [CPLR 3101(d); Fed. R. Civ. P. 26(b)(3)].

d. There is no automatic protection from disclosure of trade secrets and confidential commercial information. See Turick v. Yamaha Motor Corp. USA, 121 F.R.D. 32 (S.D.N.Y. 1988) (Edelstein, J.) (party wishing to assert trade secret protection must allege for good cause that the allegedly confidential information will work a clearly defined injury to business.)

e. There are other rules of evidence that have an impact on discovery. For example, proof of a defendant's post-accident repair or improvement is not discoverable to prove negligence in a negligence suit. Giacalone v. Hicksville Concrete Corp., 134 A.D.2d 482 (2d Dep't 1987); F.R. Evid. 407. Also, while the contents of an insurance agreement is discoverable, it is generally not admissible at trial. [CPLR 3101(f); F.R. Evid. 411].

f. Handle documents with care. Have an index system that reflects how and when you received client's and adversary's documents.

C. The Scope Of Discovery.

1. The distinction between federal and state practice is de minimis in concept, but real in practice.

a. While the New York Court of Appeals in Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403 (1968), did not adopt the federal standard, it did state that CPLR 3101's use of "material and necessary" must be "interpreted liberally to require disclosure upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason". 21 N.Y.2d at 406. This is close to, but not identical with, the federal standard of "relevancy" or "reasonably calculated to lead to the discovery of admissible evidence". [Fed. R. Civ. P. 26(b)(1)]. Note: In 1984, N.Y. Legislature rejected a proposal of the Advisory Committee on Civil Practice to further liberalize standards for discovery.

D. Non-Party Discovery.

1. Subpoena Duces Tecum.

a. In state court actions when a party serves a subpoena duces tecum for the production of documents and attendance at deposition on a non-party, the party must notify its adversary. In re Estate of Kochovos, 140 A.D.2d 180 (1st Dep't 1988) (service of subpoena without notice to adversaries is an inappropriate tactic, but the First Department would not suppress the documents obtained as there was no discovery of privileged documents nor did anyone obtain unfair advantage through such discovery). Where subpoena is served without notice and privileged material is obtained, disqualification of counsel may be warranted. Matter of Beiny, 129 A.D.2d 126 (1st Dep't 1987).

b. In federal court, a non-party may be compelled to produce documents or permit inspection under Rule 45. Also, a non-party has no standing to object to the potential confidentiality of documents sought in a subpoena. In re Application of First Chicago Corp., 1988 U.S. Dist. LEXIS 6836 (S.D.N.Y. 1988).

2. Non-Party Depositions. See IV. G., infra, for a full discussion.

E. Limitations On The Use Of Interrogatories.

1. Generally, interrogatories are most useful when you are seeking specific factual information, such as names, dates, lists or calculations, or a corporate (rather than individual) answer.

2. In New York practice, the time for propounding and the number and scope of interrogatories are often controlled by the court pursuant to CPLR 3103, 3130 and 3133. A party cannot serve written interrogatories and also demand a bill of particulars on the same party (except in matrimonial actions), nor, in negligence or wrongful death actions, can a party take a deposition and serve interrogatories on the same party without leave of court [CPLR 3130(1)]. Also, in other kinds of cases, New York courts are sometimes loath to permit the use of interrogatories after a deposition has been had on the ground that the use of both devices is cumulative. Erwin Pearl, Inc. v. Burroughs Corp., 95 Misc. 2d 157, 160 (Sup. Ct., N.Y. County, 1978); Wagner v. NFS Financial Services, 96 Misc. 2d 134 (Sup. Ct., N.Y. County, 1978)

. The use of interrogatories in the federal courts is strongly limited as well. The newly amended Fed. R. Civ. P. 33 limits interrogatories obtainable without leave of court to 25, although the number may be different under local rules. See Southern District, New York, Civil Rule 46, McKinney, New York Rules of Court, (1992) pp. 736-37; Standing Order 15 of the Eastern District on Effective Discovery in Civil cases, id. at p. 747.

3. Most litigators prefer examinations before trial (EBTs) to interrogatories if put to a choice. Thus EBTs are often the first disclosure device utilized in a New York action because of the possibility that a court would find that a litigant waived his right to an EBT in light of the interrogatories propounded. However, some New York courts have held that in complex commercial cases the initial use of interrogatories is preferred in order to save time and money. Kaye v. Kaye, 102 A.D.2d 682 (2d Dep't 1984); Barouh Eaton Allen Corp. v. IBM, 76 A.D.2d 873 (2d Dep't 1980).

F. Production of Documents.

1. State Practice

a. Under Rios v. Donovan, 21 A.D.2d 409 (1st Dep't 1964) EBTs pursuant to CPLR 3107 have been required, for all practical purposes, to be held before the demand for the production of documents pursuant to CPLR 3120, in order to identify the "specific" documents provided for in CPLR 3120(a)(1)(i). However, in a significant change, CPLR 3120 has been amended effective January 1, 1993 to permit requests to documents by category. While it may take the New York State Courts and lawyers some time to adapt to the new provisions, the infamous "Rios two-step" has finally been eliminated.

b. Formerly under CPLR 3120, parties serving notices for the production of documents or other items could seek only "specifically designated" documents or items. This provision greatly limited the amount of material that could be obtained and was the source of much litigation. However the amended 3120 enables parties to request material by "individual item or by category," so long as each item or category is described with "reasonable particularity." The many cases interpreting what document identification was specific enough for 3120 are now obsolete. E.g., Mendelowitz v. Xerox Corp., 169 A.D.2d 300 (1st Dep't 1991); Hertz Corp. v. Avis, Inc., 106 A.D.2d 246 (1st Dep't 1985); Resnick v. Karmax Camp Corp., 112 A.D.2d 206. This amendment brings the state very close to the standards of federal practice. See Fed. R. Civ. P. 34.

c. CPLR 3111 requires a deponent to bring documents to the examination for use during the examination.

d. 3120(b) notice upon a non-party must also describe the documents to be sought with reasonable particularity according to item or category, and notice of motion of discovery and inspection must be served on the non-party in the same manner as a summons and complaint. The non-party can move to vacate the notice on the grounds of lack of specificity. Fallon v. CBS, Inc., 124 A.D.2d 697 (2d Dep't 1986).

2. Federal Practice. Federal Rules of Civil Procedure 34 and 35 permit extensive documentary discovery and have been liberally construed by the courts. Fed. R. Civ. P. 45 extends the policy to third parties. New amendments to the Rules will not limit the extent of available discovery.

However, the Federal Rules of Civil Procedure have been revised extensively effective December 1, 1993. Ten of the thirteen rules have been amended, some radically. How the amendments will play out in the courts and in practice necessarily remains to be seen. For now the best and only guidance are the amended rules themselves, see 146 F.R.D. 535 et seq., the advisory committee notes, id., and interpretive articles in the legal press which are already flowing.

Perhaps the most controversial change is contained in the amended Rule 26 as what is now referred to as the Mandatory Disclosure provision. The rule now provides that "Except to the extent otherwise stipulated or directed by order or local rule, a party shall, without awaiting a discovery request, provide to other parties" an extensive list of items, including inter alia, names and addresses of witnesses to discoverable information relevant to disputed facts particularly pleaded; copies, or descriptions and locations, of all documents and tangibles relevant to the case and possessed or controlled by the party; damages estimates and the methods by which they were calculated; and insurance agreements that may cover any part of the judgment being sought. This amendment shifts the usual adversary burden; now a lawyer must find and disclose his own client's relevant documents, without a request from opposing counsel. See David D. Siegel, Federal Rules Amendments Effective Today; Thoughts on Retroactivity N.Y.L.J. 12/1/93 p. 1 col. 1. This amendment and others had such implications that the Southern District of New York put off their effective date for further study as to how local rules will be effected.

Whether the overall result of the amendments will be the intended reduction of litigation costs--or an increase--remains to be seen.

This outline reflects the changes only to the extent that they are relevant to its nuts-and-bolts approach. Again, the best resource for the near future will be the amended rules themselves.

G. The Deposition.

1. Priority.

a. CPLR 3106(a) gives a defendant priority if he serves notice before defendant's time for serving a responsive pleading has expired. Halitzer v. Ginsberg, 80 A.D.2d 771 (1st Dep't 1981). But see, Wunner v. Maguire, 66 A.D.2d 797 (2d Dep't 1978), awarding plaintiff priority where defendant possesses pertinent information within his exclusive control (in that case a fiduciary relationship between parties controlled).

(i) Otherwise, the first party to serve a notice obtains priority.

(ii) Generally, in New York practice one party achieving priority enjoys it until it has completed discovery. However, New York courts have required defendants with deposition priority to answer, before the deposition, interrogatories which were served by plaintiff prior to the deposition. Clifton Steel Corp. v. Monroe County Public Works Dep't, 74 A.D.2d 715 (4th Dep't 1980). See also Barouh Eaton Allen Corp. v. IBM, 76 A.D.2d 873 (2d Dep't 1980).

(iii) Also, in case of prolonged and extensive discovery, there are times when priority will change. See Allis-Chalmers Corp. v. U.S. Steel Corp., 94 Misc. 2d 865 (Sup. Ct., N.Y. County, 1978). Where a defendant is unwilling to cooperate in disclosure, plaintiff may be entitled to complete deposition of defendant prior to defendant commencing deposition of plaintiff. See Fox v. Fox, 96 A.D.2d 571 (2d Dept. 1983).

(iv) A party who has an outstanding demand for a bill of particulars may insist on receipt of responsive bill before appearing for his EBT. Fassnacht v. Hartman, 67 A.D.2d 676 (2d Dep't 1979).

(v) Of course, the IAS Judge can order whatever order of discovery best moves the case along. If the priority is not working, then the Judge is generally open to any reasonable suggestion.

b. In federal practice a different system prevails. There is no priority rule in federal practice. [Fed. R. Civ. P. 26(d)]. Plaintiff may serve a notice of deposition with his summons and complaint. However, under the amended Rule 26(d), effective December 1, 1993, formal discovery may not begin before the parties have met pursuant to new subdivision (f), unless it is otherwise authorized by local court rule or order, or stipulation of the parties. Subdivision (f) requires the parties or their representatives to meet in person "as soon as practicable" and before any judicial scheduling conference to discuss settlement and a proposed discovery plan.

c. Yet, the overriding principle is clear. Despite who may originally have priority, the party with the most initiative and zeal will have a substantial advantage not only in discovery, but in achieving a favorable result altogether.

2. Parties and non-parties may be deposed.

a. State Proceedings.

(i) Party - by simple notice.

(A) Place. A party may be examined only in the county where he resides, where he works or where the action is pending [CPLR 3110(1)]. A non-party may be deposed only in the county where he resides or where he works. A non-party who is a nonresident may also be deposed in the county in which he was served with the subpoena. [CPLR 3110(2)]. [CPLR 3110(3)]. See also Ambrose v. Wurlitzer Co., 27 A.D.2d 732 (2d Dep't 1967). For purposes of these rules New York City is deemed to be one county. [CPLR 3110].

(B) CPLR 3107 requires a minimum of twenty days' notice. A cross-notice must be served at least ten days in advance of your adversary's scheduled EBT.

(C) A defendant may notice a plaintiff's examination before the expiration of his time to answer, but the deposition must be scheduled for a post-answer date. If a defendant so notices, then the plaintiff may immediately cross-notice pursuant to CPLR 3107 within the 20 day period without obtaining a court order.

(ii) Non-party.

(A) CPLR 3101(a)(3) and (4) permit a deposition without court order. A party need serve only subpoena [CPLR 3106(b)] if the person sought to be deposed is about to leave the state, is outside the state, is more than 100 miles from the place of trial or is so sick or infirm that it is reasonable to believe that he may not be able to attend the trial. [CPLR 3101 (a)(3)]. Or by subpoena with a notice stating circumstances or reasons why deposition is sought, i.e., that testimony is needed to prepare for trial. [CPLR 3101 (a)(4)] Choiniere v. American Motors Corp., 133 A.D.2d 332 (2d Dept 1987); New England Mut. Life Ins. Co. v. Kelly, 113 A.D.2d 285 (1st Dep't 1985); Desai v. Blue Shield of North Eastern New York Inc., 128 A.D.2d 1021 (3d Dep't 1987). Such witnesses should also be required to produce documents at the deposition pursuant to CPLR 3111.

(B) As noted above, out of state depositions may be taken of non-parties without a court order if the non-party consents. Of course the other parties may object and move to quash or modify the subpoena pursuant to CPLR 2304. Since the service of a subpoena outside of New York will be ineffective to compel such a witness to appear at an examination, CPLR 3108 makes available, upon application to the court, the commission and the letter rogatory as devices to secure disclosure and may be used in conjunction with out-of-state sanctions, pursuant to provisions similar to CPLR 3102 (subd. [e]), which provides the disclosure procedure to compel the appearance and testimony of a witness in New York in an action pending in another jurisdiction. See Wiseman v. American Sales Corp., 103 A.D.2d 230, 234-35 (2d Dep't 1984).

(C) Presently there is a split between the First and Second Departments concerning the standard satisfying CPLR 3101(a)(4). The First Department states that the proponent's burden of establishing "circumstances or reasons" for the deposition is to be liberally interpreted. Slabakis v. Drizin, 107 A.D.2d 45 (1st Dep't 1985). And the Second Department holds that "[m]ore than mere relevance and materiality is necessary to warrant disclosure from a non-party." Dioguardi v. St. John's Riverside Hospital, 144 A.D.333 (2d Dep't 1988). The Second Department standard seems out of synch with the liberal policy expressed in the recent CPLR changes, and may not be long-lived.

(iii) Expert Witnesses. CPLR 3101(d) provides that, in any action commenced on or after 7/1/85 and upon request a party must identify his expert trial witnesses (unless they are medical, dental or podiatric witnesses), and with respect to all expert trial witnesses, disclose the subject matter of his testimony, the substance of the facts and opinions on which they are expected to testify, their qualifications, and a summary of the grounds for their opinions. However, in Renucci v. Mercy Hospital, 124 A.D.2d 796 (2d Dep't 1986), the Second Department limited the scope of CPLR 3101(d). The court held that a medical report prepared for litigation was exempt from discovery; a request for the identity of medical experts was improper; a request concerning qualifications was excessively detailed; and a request for "facts and opinions" upon which the expert was expected to testify was improper. See also Jasopersaud v. Rho, 169 A.D.2d 184 (2d Dep't 1991) (demand seeking medical expert's graduation date and hospital affiliation quashed because could lead to identification of the expert; demand for "every" treatise/document relied upon went beyond disclosure of the grounds of an expert's opinion "in reasonable detail").

(A) An expert retained without sufficient time to give such notice can still be used at trial if good cause is shown, but the court may condition that testimony in the interests of justice. [CPLR 3101(d)(1)(i)].

(B) The rules regarding the discovery of expert witnesses do not limit the right of a party to seek non-opinion disclosure of experts who are also fact witnesses, because, for example, they witnessed events or can testify factually as to test methods or materials. See, e.g., Kraus v. Ford Motor Co., 38 A.D.2d 680 (4th Dep't 1971). However, even here, the court may limit discovery to interrogatories so as to avoid risk of discovery of material prepared for litigation. See Humiston v. Rochester Institute of Technology, 125 A.D.2d 957 (4th Dep't 1986).

(C) A party may offer the deposition of his own medical or dental expert, in which case if all other parties accept the offer they must provide their experts for deposition as well. [CPLR 3101(d)(1)(ii)]

(D) Further disclosure of an expert demands a court order and a showing of special circumstances. There may be restrictions regarding fees and expenses. [CPLR 3101(d)(1) (iii)].

(E) CPLR 3106(d) provides that a party desiring to take the deposition of a particular officer, director, member or employee of a person shall include in its notice or subpoena the identity, description or title of the designee. The party noticed or subpoenaed must produce the described person unless such organization no later than 10 days prior to the deposition, gives notice of an alternate designee.

(F) Where out-of-state parties are involved, the general rule is that in-state plaintiff must travel to nonresident defendant to take his EBT, or delay an EBT in New York until the eve of trial. Fusfeld v. Novogroder, 97 A.D.2d 729 (1st Dep't 1983); contra Carborundum Environmental Systems Canada, Ltd. v. Nitec Paper Corp., 69 A.D.2d 981 (4th Dep't 1979). The out-of-state plaintiff must travel to New York for his EBT. Mack v. J.C. Penney Co., 81 A.D.2d 761 (1st Dep't 1981).

(iv) Note - videotaping possibility. CPLR 3113(b) permits videotaping of an EBT in lieu of stenographic recording. Rubino v. G.D. Searle & Co., 73 Misc. 2d 447 (Sup. Ct. Nassau County, 1973).

b. Federal Practice.

(i) Party and Non-Party.

(A) A deposition is taken on notice [Fed. R. Civ. P. 30(b)], and such notice may be accompanied by a Fed. R. Civ. P. 34 document request. [Fed. R. Civ. P. 30(b)(5)].

(B) Leave of court is necessary if a party seeks to take a deposition prior to the meeting of the parties pursuant to amended Fed. R. Civ. P. 26(d), unless local court rule or order, or stipulation of the parties allows it, or the person to be examined is expected to leave the country and continue to be unavailable. [Fed. R. Civ. P. 30(a)]. Leave is not required where the person to be examined has already been deposed in the case in accordance with local court rule or order, or stipulation of the parties. [Fed. R. Civ. P. 30(a)(2)(B)].

(C) Amended Fed. R. Civ. P. 30(a)(2)(A) limits the number of depositions that may be taken without leave of court to ten, although that number may be altered by local court rule or order [Fed. R. Civ. P. 26(b)(2)] (D) Fed. R. Civ. P. 30 provides that a deposition of a non-party may be taken merely by subpoena and notice. No showing of special circumstances is required. [Fed. R. Civ. P. 45]. (E) Deposition may be taken on written questions. [Fed. R. Civ. P. 31].

(F) An amendment to Rule 30 provides that objections to evidence during a deposition must be "stated concisely and in a non-argumentative manner." A party may instruct a witness not to answer only when it is necessary to preserve a privilege. Fed. R. Civ. P. 30(d)(1). These changes are meant to reduce obstructive tactics.

(G) Amended Fed. R. Civ. P. 26 provides that a party may depose "any person who has been identified as an expert whose opinions may be presented at trial." Fed. R. Civ. P. 26(b)(4)(A). The deposition may not be held until after submission by the expert of a written report required by the newly amended Rule 26(a)(2). The prior rule provided for the use of interrogatories for experts and required a court order to depose them. However, courts tended to grant depositions so regularly that prior practice generally matched the new rule.

(H) Fed. R. Civ. P. 30(b)(6) provides that when a notice of deposition to a party or deposition subpoena is served on a non-party which is a corporation, partnership or government agency which describes the matters on which the examination is to be requested, the organization shall designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf, to testify and the matters to which each such designee shall testify. Note - subpoenas shall advise a non-party organization of its duty to make such a designation.

(I) Depositions may be videotaped. [Fed. R. Civ. P. 30(a)4].

(J) Under Fed. R. Civ. P. 30(b)(7), a deposition may be taken by telephone "or other remote electronic means" if stipulated to or ordered by court. Not to be used unless an unimportant EBT.

H. Tactics For Taking An EBT.

1. Know your case.

2. Put your deponent at ease - he has been prepared to meet the "devil incarnate".

3. Avoid the use of pre-prepared written questions.

4. For an untruthful witness - start with the easy testimony; get him to trap himself by leaving no door open.

5. Figure out how your deponent has been prepared (i.e., by subject or by chronology) and then probe for information in a different direction than that for which he has been prepared.

6. Setting the rules for dealings with your adversary:

a. Be willing to stipulate to a protective order with respect to confidential information. This eliminates unnecessary motion practice and even if it becomes necessary, you will appear to be a reasonable litigant.

b. Instructions not to answer when an objection exists as to form are inappropriate, but are frequently done. See CPLR 3115(d). But see Standing Order 11 of the Eastern District on Effective Discovery in Civil Cases, McKinney, New York Rules of Court, (1992) p. 747.

c. While difficult to prevent, coaching between counsel and his client is clearly improper when a question is pending and doing so at other times is probably improper as well.

d. See generally, Conducting The Oral Deposition, by Stuart A. Summit, ABA Litigation Magazine, Vol. 1, No. 2 (Spring 1975) p. 22.

I. Tactics For Preparing A Witness And Defending An EBT.

1. Prepare Your Witness - not 15 minutes at the courthouse. Get to know him. Have a few trial runs. Cross-examine him.

2. Warn Your Witness: he is making a written record -no loose talk.

3. "Yes" or "No" Responses - not generally desirable.

4. No Speculating - listen carefully to the question. If necessary have the question repeated, reread.

5. Witness should take time -- lots of time --between questions and answers.

6. Correct mistakes immediately. The witness should assume that he will make some.

7. See generally, The Witness Needs Help, by Stuart A. Summit, ABA Litigation Magazine, Vol. 3, No. 2 (Winter 1977), p. 14.

J. After the Deposition.

1. If your witness - order copies of transcript for your review, send a copy to your witness.

2. Advise your witness to advise you of corrections of mistakes in the transcription, whether typographic or substantive, immediately.

3. Instruct your witness to sign the transcript.

4. If adversary's witness - all transcripts may be sent to you, send original and copy to adversary.

5. Filing requirements are usually waived by most practitioners.

6. Videotaped depositions - you are entitled to an unedited tape.

V. Discovery Motions

A. If your opponent seeks improper discovery, you may move for a protective order. Such a motion stays the disclosure at issue until it is determined. [CPLR 3103(b)]. Protective orders seek to deny, limit, condition or regulate the use of disclosure devices order to avoid "unreasonable annoyance, exposure, embarrassment, disadvantage or other prejudice to any person or the courts," CPLR 3103(a). (See Fed. R. Civ. P. 26(c) which does not give automatic stay when motion for protective order filed.) An order to show cause must be used to obtain stay. An amendment to CPLR 3103(a), effective January 1, 1993, enables any person to seek a protective order in response to any disclosure device directed at him. Previously this remedy was limited to parties.

B. A protective order may be sought "at any time;" however, a party seeking to contest interrogatories [CPLR 3130] must make his motion for a protective order within ten days of service of the interrogatories [CPLR 3133]. Failure to move timely may constitute a waiver. Albany Custom Floors Inc. v. Urbach, Kahn & Werlin, 128 A.D.2d 924 (3d Dep't 1987). In federal courts, the amended Fed. R. Civ. P. 26(b)(5) now provides that a party who claims a privilege or work-product protection must "make the claim expressly and shall describe the nature" of the otherwise discoverable material so that other parties can assess the claim. Withholding this information may constitute waiver of the claim.

C. In a significant change to the CPLR disclosure rules, parties seeking to contest any part or all of a notice for discovery and inspection [CPLR 3120] or a demand for physical or mental inspection [CPLR 3121] now has twenty days to respond to the request and will shift the burden of showing that material is discoverable to the party seeking the information. Amended CPLR 3122, effective January 1, 1993, provides that the objecting party serve a response within twenty days stating with reasonable particularity its reasons for each objection, indicating the legal ground for withholding the material, and providing the following information as to each document withheld: (1) the type of document; (2) its general subject matter; (3) its date; and (4) such other information sufficient to identify the document for a subpoena duces tecum. The party seeking disclosure must then move for an order to compel disclosure pursuant to CPLR 3124. This amendment brings New York in line with federal procedure, which has always provided that the discovering party bears the burden of establishing that material which is sought to be protected is discoverable.

D. Under the CPLR's previous ten-day rule, however, the time limit was not enforced when the disclosure demanded was so far beyond the scope of CPLR 3101 as to be palpably improper. E.g., Lazan v. Bellin, 95 A.D.2d 751 (1st Dep't 1983); Faraone v. Carrollwood Associates, 123 A.D.2d 344 (2d Dep't 1986); Frazier v. Alphonso, 86 A.D.2d 945 (3d Dep't 1982); and Rinaldo v. Syracuse University, 51 A.D.2d 675 (4th Dep't 1976).

E. If you are seeking discovery and your opponent, instead of moving for a protective order, simply fails or refuses to comply with a disclosure notice, you can move to compel discovery [CPLR 3124 and Fed. R. Civ. P. 37(a)], and move to have sanctions imposed against your adversary. [CPLR 3126 and Fed. R. Civ. P. 37(b)]. Under newly amended Fed. R. Civ. P. 32(a)(3)(E), a deposition cannot be used against a party who was served with less than eleven days' notice and who promptly moved for a protective order, when the motion was pending at the scheduled time of the deposition.

F. Such sanctions include resolving issues against the noncomplying party, precluding that party from offering certain evidence, and even, where his disobedience is "wilful or contumacious," striking his pleading and entering a default judgment against him. Compare Elghanayan v. Elghanayan, 128 A.D.2d 465 (1st Dep't 1987) (striking affirmative defenses); with Halpern v. Northtown Realty Co., 137 A.D.2d 583 (2d Dep't 1988) (where action not contumacious stricken pleading reinstated, conditioned upon payment of sanction). Cinelli v. Radcliffe, 35 A.D.2d 829 (2d Dep't 1970). [CPLR 3126 and Fed. R. Civ. P. 37(b)].

1. Frequently, the court will issue a conditional order, striking a party's pleading unless she complies with the discovery demand within a designated period. S.H. Kress-Shoreview, Inc. v. Kleiman, 58 A.D.2d 763 (1st Dep't 1977). See Baumann v. Dee, 100 A.D.2d 504 (2d Dep't 1984) (complaint dismissed for willful failure to comply with three discovery orders).

2. CPLR 205(a) excludes dismissal for lack of prosecution from the statutory provision that an action dismissed without reaching the merits has six months to start a new action. Ivory v. Ekstrom, 98 A.D.2d 763 (2d Dep't 1983), holds that the sanction of dismissal under CPLR 3126 is a dismissal for failure to prosecute. Hence, there is no six-month extension if statute of limitations has run.

3. Fed. R. Civ. P. 26(g) requires every request for, response or objection to, discovery to be signed by individual attorney and constitutes a certification that to the best of his knowledge, information and belief, formed after reasonable inquiry, such request, response or objection is warranted and not interposed for any improper purpose such as harassment, and is not unreasonably burdensome. Sanctions, including attorneys' fees, may be imposed for violation. Lawyers should be aware of the ethical obligations imposed by N.Y. State law, as well. For example, N.Y. Judiciary law § 750 imposes limits on an attorney's conduct by authorizing courts to punish those who engage in certain improper actions.

4. Against a recalcitrant non-party, the usual sanction is contempt of court. Fed. R. Civ. P. 37(b)(2)(D); see Siegel, 7B McKinney's Laws of New York, § C3126:4, p. 754-756. Note that in federal court contempt is available against a party as well, but in state practice it appears not to be an alternative. (Id.)

G. In state court, a party must move to strike if he objects to a demand for a bill of particulars [CPLR 3042(a)] or to interrogatories [CPLR 3133(a)]. In New York, bills of particulars are viewed as pleadings, not disclosure, and as such there is no comparable discovery device in federal courts. In federal courts, the procedure is for the party objecting to interrogatories and other discovery methods merely to serve his objections. The burden is then on the party seeking discovery to move to compel that discovery. See Fed. R. Civ. P. 33(a) (interrogatories); Fed. R. Civ. P. 34(b) (production and inspection); and Fed. R. Civ. P. 36(a) (request for admissions).

H. Efforts to reduce the volume of discovery motions have been undertaken on both the state and federal level.

1. The amended Fed. R. Civ. P. 26(d) and (f) require the parties or their representatives to meet in person as soon as practicable to define and limit the scope of discovery, prior to any judicial scheduling conference, and prior to the onset of formal discovery unless permitted by local court rule or order or stipulation of the parties. In addition, as a means of regulating their dockets and avoiding the proliferation of time-consuming motion practice, many federal judges hold pre-motion conferences in chambers before permitting motions to be made.

2. Pursuant to the Uniform Rules for the New York State Supreme Court no motion for disclosure or for a bill of particulars can be filed with the court unless there is submitted an affirmation that there has been a good faith attempt to resolve such matters raised by motion. See § 202.7(c). It is the policy of many IAS judges, as well as certain federal judges, to condition the making of a written motion on prior judicial approval. In order to preserve a party's right to appeal from denial of leave to move, a record must be made. In such circumstances, an unsigned record of a proceeding may constitute an appealable order. See Matter of Grisi v. Shainswit, 119 A.D.2d 418 (1st Dep't 1986). An order may be appealable notwithstanding that it did not result from a motion made on notice. See Goldheart International Ltd. v. Vulcan Construction Corp., 124 A.D.2d 507 (1st Dep't 1986). This issue is purely a state one, because of the virtual absence of Federal interlocutory appeals.

3. Pursuant to § 202.12(a) of the Uniform Rules of the New York State Trial Courts, a request for a preliminary conference made via the RJI must be accompanied by a good faith affirmation of attempts to resolve timely problems and non-compliance problems among counsel.

VI. After Discovery

A. In New York State:

Cases are placed on the trial calendar by filing and service of note of issue and statement of readiness. [CPLR 3402; Part 202, Section 202.21 of the Uniform Rules for the New York State Trial Courts.] A jury demand is made in the note of issue. If not, the other party to the action may demand a jury within 15 days after service of note of issue. [CPLR 4102]. A statement of readiness provides that all discovery has been completed, or that a reasonable opportunity to complete discovery has existed and the parties do not intend to do so; it also states the status of settlement discussions, and that action is ready for trial. A motion to strike the statement of readiness on the grounds that the action is not ready for trial must be made within 20 days after its service. The court may deny the motion and still allow discovery to be completed. Note that certain actions are entitled to preferences in the trial date [CPLR 3403].

Once a note of issue is filed, many cases are transferred to a trial assignment part (TAP). However, cases in the matrimonial parts, tax certiorari parts and in the new commercial parts will, following filing of the note of issue, remain with the originally assigned Justice and will not be transferred to a TAP part. Three Justices have been designated as TAP Judges. Each TAP Justice schedules and conferences trial-ready cases. If cases are not settled, they are, as a TAP Judge directs, scheduled for trial. In cases in which there has been a jury demand, the TAP Justice sends out the case for jury selection. Thereafter, each case is assigned for purposes of the actual trial to one of the Justices within the TAP Judge's group of trial Justices.

B. Federal Court:

Once discovery is complete, the assigned judge may call a pretrial conference in order to set a date for trial as well as submission of a proposed pretrial order, proposed voir dire for prospective jurors and pretrial memoranda of law. [Fed. R. Civ. P. 16(d)]. There is no federal court equivalent to state court note of issue. Fed. R. Civ. P. 40 provides that the court may place the case on the trial calendar without notice to parties. Sanctions may be imposed for failure to comply with the pretrial scheduling order. [Fed. R. Civ. P. 16(f)].

Pursuant to Rule 21 of the Rules of the Southern and Eastern District (McKinney, New York Rules of Court, (1992) p. 731) plaintiff's counsel must provide copies of marked pleadings. Individual judges' rules should also be consulted with respect to pretrial submissions. In the Southern District, civil trials may be subject to 48 hour telephone notice.

Fed. R. Civ. P. 38(d) provides that a demand for a jury trial may not be withdrawn without the consent of all parties.