N.Y. CVP Law § 3101 — New York Code / Act CVP / Article 31 / Section 3101
Scope of disclosure
Status: in_force

§ 3101. Scope of disclosure. (a) Generally. There shall be full\ndisclosure of all matter material and necessary in the prosecution or\ndefense of an action, regardless of the burden of proof, by:\n  (1) a party, or the officer, director, member, agent or employee of a\nparty;\n  (2) a person who possessed a cause of action or defense asserted in\nthe action;\n  (3) a person about to depart from the state, or without the state, or\nresiding at a greater distance from the place of trial than one hundred\nmiles, or so sick or infirm as to afford reasonable grounds of belief\nthat he or she will not be able to attend the trial, or a person\nauthorized to practice medicine, dentistry or podiatry who has provided\nmedical, dental or podiatric care or diagnosis to the party demanding\ndisclosure, or who has been retained by such party as an expert witness;\nand\n  (4) any other person, upon notice stating the circumstances or reasons\nsuch disclosure is sought or required.\n  (b) Privileged matter. Upon objection by a person entitled to assert\nthe privilege, privileged matter shall not be obtainable.\n  (c) Attorney's work product. The work product of an attorney shall not\nbe obtainable.\n  (d) Trial preparation.\n  1. Experts. (i) Upon request, each party shall identify each person\nwhom the party expects to call as an expert witness at trial and shall\ndisclose in reasonable detail the subject matter on which each expert is\nexpected to testify, the substance of the facts and opinions on which\neach expert is expected to testify, the qualifications of each expert\nwitness and a summary of the grounds for each expert's opinion. However,\nwhere a party for good cause shown retains an expert an insufficient\nperiod of time before the commencement of trial to give appropriate\nnotice thereof, the party shall not thereupon be precluded from\nintroducing the expert's testimony at the trial solely on grounds of\nnoncompliance with this paragraph. In that instance, upon motion of any\nparty, made before or at trial, or on its own initiative, the court may\nmake whatever order may be just. In an action for medical, dental or\npodiatric malpractice, a party, in responding to a request, may omit the\nnames of medical, dental or podiatric experts but shall be required to\ndisclose all other information concerning such experts otherwise\nrequired by this paragraph.\n  (ii) In an action for medical, dental or podiatric malpractice, any\nparty may, by written offer made to and served upon all other parties\nand filed with the court, offer to disclose the name of, and to make\navailable for examination upon oral deposition, any person the party\nmaking the offer expects to call as an expert witness at trial. Within\ntwenty days of service of the offer, a party shall accept or reject the\noffer by serving a written reply upon all parties and filing a copy\nthereof with the court. Failure to serve a reply within twenty days of\nservice of the offer shall be deemed a rejection of the offer. If all\nparties accept the offer, each party shall be required to produce his or\nher expert witness for examination upon oral deposition upon receipt of\na notice to take oral deposition in accordance with rule thirty-one\nhundred seven of this chapter. If any party, having made or accepted the\noffer, fails to make that party's expert available for oral deposition,\nthat party shall be precluded from offering expert testimony at the\ntrial of the action.\n  (iii) Further disclosure concerning the expected testimony of any\nexpert may be obtained only by court order upon a showing of special\ncircumstances and subject to restrictions as to scope and provisions\nconcerning fees and expenses as the court may deem appropriate. However,\na party, without court order, may take the testimony of a person\nauthorized to practice medicine, dentistry or podiatry who is the\nparty's treating or retained expert, as described in paragraph three of\nsubdivision (a) of this section, in which event any other party shall be\nentitled to the full disclosure authorized by this article with respect\nto that expert without court order.\n  2. Materials. Subject to the provisions of paragraph one of this\nsubdivision, materials otherwise discoverable under subdivision (a) of\nthis section and prepared in anticipation of litigation or for trial by\nor for another party, or by or for that other party's representative\n(including an attorney, consultant, surety, indemnitor, insurer or\nagent), may be obtained only upon a showing that the party seeking\ndiscovery has substantial need of the materials in the preparation of\nthe case and is unable without undue hardship to obtain the substantial\nequivalent of the materials by other means. In ordering discovery of the\nmaterials when the required showing has been made, the court shall\nprotect against disclosure of the mental impressions, conclusions,\nopinions or legal theories of an attorney or other representative of a\nparty concerning the litigation.\n  (e) Party's statement. A party may obtain a copy of his own statement.\n  (f) Contents of insurance agreement. (1) No later than ninety days\nafter service of an answer pursuant to rule three hundred twenty or\nsection three thousand eleven or three thousand nineteen of this\nchapter, any defendant, third-party defendant, or defendant on a\ncross-claim or counter-claim shall provide to the plaintiff, third-party\nplaintiff, plaintiff on counter-claim, and any other party in the action\nproof of the existence and contents of any insurance agreement in the\nform of a copy of the insurance policy in place at the time of the loss\nor, if agreed to by such plaintiff or party in writing, in the form of a\ndeclaration page, under which any person or entity may be liable to\nsatisfy part or all of a judgment that may be entered in the action or\nto indemnify or reimburse for payments made to satisfy the entry of\nfinal judgment. A plaintiff or party who agrees to accept a declaration\npage in lieu of a copy of any insurance policy does not waive the right\nto receive any other information required to be provided under this\nsubdivision, and may revoke such agreement at any time, and upon notice\nto an applicable defendant of such revocation, shall be provided with\nthe full copy of the insurance policy in place at the time of the loss.\nInformation and documentation, as evidenced in the form of a copy of the\ninsurance policy in place at the time of the loss or the declaration\npage, pursuant to this subdivision shall include:\n  (i) all primary, excess and umbrella policies, contracts or agreements\nissued by private or publicly traded stock companies, mutual insurance\ncompanies, captive insurance entities, risk retention groups, reciprocal\ninsurance exchanges, syndicates, including, but not limited to, Lloyd's\nUnderwriters as defined in section six thousand one hundred sixteen of\nthe insurance law, surplus line insurers and self-insurance programs\ninsofar as such documents relate to the claim being litigated;\n  (ii) if the insurance policy in place is provided, a complete copy of\nany policy, contract or agreement under which any person or entity may\nbe liable to satisfy part or all of a judgment that may be entered in\nthe action or to indemnify or reimburse for payments made to satisfy the\nentry of final judgment as referred to in this paragraph, including, but\nnot limited to, declarations, insuring agreements, conditions,\nexclusions, endorsements, and similar provisions;\n  (iii) the contact information, including the name and e-mail address,\nof an assigned individual responsible for adjusting the claim at issue;\nand\n  (iv) the total limits available under any policy, contract or\nagreement, which shall mean the actual funds, after taking into account\nerosion and any other offsets, that can be used to satisfy a judgment\ndescribed in this subdivision or to reimburse for payments made to\nsatisfy the judgment.\n  (2) A defendant, third-party defendant, or defendant on a cross-claim\nor counter-claim required to produce to a plaintiff or third-party\nplaintiff or plaintiff on a counter-claim all information set forth in\nparagraph one of this subdivision must make reasonable efforts to ensure\nthat the information remains accurate and complete, and provide updated\ninformation to any party to whom this information has been provided at\nthe filing of the note of issue, when entering into any formal\nsettlement negotiations conducted or supervised by the court, at a\nvoluntary mediation, and when the case is called for trial, and for\nsixty days after any settlement or entry of final judgment in the case\ninclusive of all appeals.\n  (3) For purposes of this subdivision, an application for insurance\nshall not be treated as part of an insurance agreement. Disclosure of\npolicy limits under this section shall not constitute an admission that\nan alleged injury or damage is covered by the policy.\n  (4) Information concerning the insurance agreement is not by reason of\ndisclosure admissible in evidence at trial.\n  (5) The requirements of this subdivision shall not apply to actions\nbrought to recover motor vehicle insurance personal injury protection\nbenefits under article fifty-one of the insurance law or regulation\nsixty-eight of title eleven of the New York codes, rules and\nregulations.\n  (g) Accident reports. Except as is otherwise provided by law, in\naddition to any other matter which may be subject to disclosure, there\nshall be full disclosure of any written report of an accident prepared\nin the regular course of business operations or practices of any person,\nfirm, corporation, association or other public or private entity, unless\nprepared by a police or peace officer for a criminal investigation or\nprosecution and disclosure would interfere with a criminal investigation\nor prosecution.\n  (h) Amendment or supplementation of responses. A party shall amend or\nsupplement a response previously given to a request for disclosure\npromptly upon the party's thereafter obtaining information that the\nresponse was incorrect or incomplete when made, or that the response,\nthough correct and complete when made, no longer is correct and\ncomplete, and the circumstances are such that a failure to amend or\nsupplement the response would be materially misleading. Where a party\nobtains such information an insufficient period of time before the\ncommencement of trial appropriately to amend or supplement the response,\nthe party shall not thereupon be precluded from introducing evidence at\nthe trial solely on grounds of noncompliance with this subdivision. In\nthat instance, upon motion of any party, made before or at trial, or on\nits own initiative, the court may make whatever order may be just.\nFurther amendment or supplementation may be obtained by court order.\n  (i) In addition to any other matter which may be subject to\ndisclosure, there shall be full disclosure of any films, photographs,\nvideo tapes or audio tapes, including transcripts or memoranda thereof,\ninvolving a person referred to in paragraph one of subdivision (a) of\nthis section.  There shall be disclosure of all portions of such\nmaterial, including out-takes, rather than only those portions a party\nintends to use. The provisions of this subdivision shall not apply to\nmaterials compiled for law enforcement purposes which are exempt from\ndisclosure under section eighty-seven of the public officers law.\n