A recent decision from the New York Appellate Division, Fourth Department, Sciara v. Surgical Associates of Western NY, et al. may well have opened the door to the potential abuse of pre-trial depositions by allowing parties to circumvent the ability of non-parties (including physicians) to avail themselves of their right to legal counsel.1
In the matter of Thompson v. Mather, a decision was reached by the Appellate Division which rigidly prohibited counsel for non-party witnesses from participating in a pre-trial deposition under CPLR 3113.2 As interpreted by the Thompson court, CPLR 3113(c) precludes participation by counsel to a nonparty since the statute provides, in part, that the examinations and cross-examinations of deponents “shall proceed as permitted in the trial of actions in open court.” Since counsel for a non-party witness is not permitted to examine or cross-examine a witness at trial, the court reasoned that counsel for a non-party witness is also not permitted to participate in a pre-trial deposition.
The Sciara lower court, however, interpreted the Thompson decision in a more liberal fashion in its attempt to ameliorate the deleterious effects of Thompson. Justice Curran held that Thompson did not stand for the proposition that counsel for a non-party witness is prohibited from protecting his or her client from an invasion of a privilege or plainly improper questioning causing significant prejudice if answered. Justice Curran further reasoned that Uniform Rules § 221.2 and § 221.3 are not limited to parties but apply to deponents as well. In that light, the lower court held that, in the event a question posed to a non-party witness falls under the three (3) exceptions to § 221.2, counsel for the non-party witness may object, and the witness decline to answer the question.
The Appellate Division in Sciara, however, overturned the lower court’s decision by a vote of 3 – 2, holding that a non-party deponent’s attorney could not object to any questions during a pre-trial deposition.3 In reaching this decision, the majority interpreted the statute CPLR 3113(c) to be in conflict with 22 N.Y.C.R.R. 221.2 and ruled that CPLR 3113(c) was the controlling authority, and therefore prohibited counsel for a non-party deponent from making any objections.
In contrast, a recent report from the Advisory Committee on Civil Practice recommended that CPLR 3113(c) be amended “to specifically provide that a non-party’s counsel ‘may participate in the deposition and make objections in the same manner as counsel for a party.’”4
Regardless of whether it is accomplished through statutory amendment or judicial decision, it is clear that, in order for physicians to adequately protect their interests, the law precluding counsel for non-party witnesses from participating in the deposition process must be overturned. If the law remains unchanged, a non-party deponent is left utterly unprotected during the deposition because the deponent is unlikely to know whether it is appropriate to answer questions posed by party counsel. As there is no judge or impartial officer of the court in attendance at a non-party deposition, without the effective assistance of counsel, a non-party physician is left virtually unprotected and the attorney for the non-party is, in essence, left to serve as nothing more than a proverbial “potted plant.”
Moreover, if this decision is not overturned, or CPLR 3113(c) amended, plaintiff’s counsel may be encouraged to depose an adverse party before joining that person as a party in order to avoid objections that might occur if the non-party were a named defendant in that action.
In conclusion, any objective criteria for the analysis of the interests of justice and fundamental