Although the procedural and substantive requirements for obtaining disclosure from nonparties in New York civil practice have been relaxed by legislative and judicial action over the past 30 years, questions regarding the availability of such disclosure have troubled the courts and practitioners alike. With its April 3, 2014, decision in Matter of Kapon v. Koch,___NY3d___, 2014 WL 1315590, 2014 Slip Op 02327 (2014) the Court of Appeals has now resolved a disagreement between the departments of the Appellate Division as to the substantive requirements for obtaining disclosure from nonparties.

Procedural Requirements

The most significant procedural change in the past 30 years was the elimination of the requirement that the party seeking disclosure from a nonparty first obtain a court order. Prior to its amendment in 1984, CPLR 3101(a)(4) authorized the deposition of a nonparty only “where the court on motion determines that there are adequate special circumstances.” Except where the deposition of an adverse party’s expert is sought (see CPLR 3101[d][iii]), the statute now provides for disclosure from “any other person” merely “upon notice stating the circumstances or reasons such disclosure is sought or required.” The “circumstances or reasons” should appear on the face of the subpoena (service of which secures jurisdiction over the witness) or on a separate notice accompanying the subpoena, with a copy to all parties appearing.