2023 New York Laws › CVP - Civil Practice Law and Rules › Article 31 - Disclosure › 3101 - Scope of Disclosure.

§  3101.  Scope  of  disclosure.  (a)  Generally.  There shall be full
disclosure of all matter material and necessary in  the  prosecution  or
defense of an action, regardless of the burden of proof, by:
(1)  a party, or the officer, director, member, agent or employee of a
party;
(2) a person who possessed a cause of action or  defense  asserted  in
the action;
(3)  a person about to depart from the state, or without the state, or
residing at a greater distance from the place of trial than one  hundred
miles,  or  so  sick or infirm as to afford reasonable grounds of belief
that he or she will not be  able  to  attend  the  trial,  or  a  person
authorized  to practice medicine, dentistry or podiatry who has provided
medical, dental or podiatric care or diagnosis to  the  party  demanding
disclosure, or who has been retained by such party as an expert witness;
and
(4) any other person, upon notice stating the circumstances or reasons
such disclosure is sought or required.
(b)  Privileged  matter. Upon objection by a person entitled to assert
the privilege, privileged matter shall not be obtainable.
(c) Attorney's work product. The work product of an attorney shall not
be obtainable.
(d) Trial preparation.
1. Experts. (i) Upon request, each party shall  identify  each  person
whom  the  party expects to call as an expert witness at trial and shall
disclose in reasonable detail the subject matter on which each expert is
expected to testify, the substance of the facts and  opinions  on  which
each  expert  is  expected to testify, the qualifications of each expert
witness and a summary of the grounds for each expert's opinion. However,
where a party for good cause shown retains  an  expert  an  insufficient
period  of  time  before  the  commencement of trial to give appropriate
notice  thereof,  the  party  shall  not  thereupon  be  precluded  from
introducing  the  expert's  testimony  at the trial solely on grounds of
noncompliance with this paragraph. In that instance, upon motion of  any
party,  made before or at trial, or on its own initiative, the court may
make whatever order may be just. In an action  for  medical,  dental  or
podiatric malpractice, a party, in responding to a request, may omit the
names  of  medical, dental or podiatric experts but shall be required to
disclose  all  other  information  concerning  such  experts   otherwise
required by this paragraph.
(ii)  In  an  action for medical, dental or podiatric malpractice, any
party may, by written offer made to and served upon  all  other  parties
and  filed  with  the  court, offer to disclose the name of, and to make
available for examination upon oral deposition,  any  person  the  party
making  the  offer expects to call as an expert witness at trial. Within
twenty days of service of the offer, a party shall accept or reject  the
offer  by  serving  a  written  reply upon all parties and filing a copy
thereof with the court. Failure to serve a reply within twenty  days  of
service  of  the  offer shall be deemed a rejection of the offer. If all
parties accept the offer, each party shall be required to produce his or
her expert witness for examination upon oral deposition upon receipt  of
a  notice  to  take  oral  deposition in accordance with rule thirty-one
hundred seven of this chapter. If any party, having made or accepted the
offer, fails to make that party's expert available for oral  deposition,
that  party  shall  be  precluded  from offering expert testimony at the
trial of the action.
(iii) Further disclosure concerning  the  expected  testimony  of  any
expert  may  be  obtained  only by court order upon a showing of special
circumstances and subject to restrictions as  to  scope  and  provisions

concerning fees and expenses as the court may deem appropriate. However,
a  party,  without  court  order,  may  take  the  testimony of a person
authorized to practice  medicine,  dentistry  or  podiatry  who  is  the
party's  treating or retained expert, as described in paragraph three of
subdivision (a) of this section, in which event any other party shall be
entitled to the full disclosure authorized by this article with  respect
to that expert without court order.
2.  Materials.  Subject  to  the  provisions  of paragraph one of this
subdivision, materials otherwise discoverable under subdivision  (a)  of
this  section and prepared in anticipation of litigation or for trial by
or for another party, or by or for  that  other  party's  representative
(including  an  attorney,  consultant,  surety,  indemnitor,  insurer or
agent), may be obtained only upon  a  showing  that  the  party  seeking
discovery  has  substantial  need of the materials in the preparation of
the case and is unable without undue hardship to obtain the  substantial
equivalent of the materials by other means. In ordering discovery of the
materials  when  the  required  showing  has  been made, the court shall
protect against  disclosure  of  the  mental  impressions,  conclusions,
opinions  or  legal theories of an attorney or other representative of a
party concerning the litigation.
(e) Party's statement. A party may obtain a copy of his own statement.
(f) Contents of insurance agreement. (1) No  later  than  ninety  days
after  service  of  an  answer  pursuant to rule three hundred twenty or
section three  thousand  eleven  or  three  thousand  nineteen  of  this
chapter,  any  defendant,  third-party  defendant,  or  defendant  on  a
cross-claim or counter-claim shall provide to the plaintiff, third-party
plaintiff, plaintiff on counter-claim, and any other party in the action
proof of the existence and contents of any insurance  agreement  in  the
form  of a copy of the insurance policy in place at the time of the loss
or, if agreed to by such plaintiff or party in writing, in the form of a
declaration page, under which any person or  entity  may  be  liable  to
satisfy  part  or all of a judgment that may be entered in the action or
to indemnify or reimburse for payments made  to  satisfy  the  entry  of
final  judgment. A plaintiff or party who agrees to accept a declaration
page in lieu of a copy of any insurance policy does not waive the  right
to  receive  any  other  information  required to be provided under this
subdivision, and may revoke such agreement at any time, and upon  notice
to  an  applicable  defendant of such revocation, shall be provided with
the full copy of the insurance policy in place at the time of the  loss.
Information and documentation, as evidenced in the form of a copy of the
insurance  policy  in  place  at the time of the loss or the declaration
page, pursuant to this subdivision shall include:
(i) all primary, excess and umbrella policies, contracts or agreements
issued by private or publicly traded stock companies,  mutual  insurance
companies, captive insurance entities, risk retention groups, reciprocal
insurance  exchanges, syndicates, including, but not limited to, Lloyd's
Underwriters as defined in section six thousand one hundred  sixteen  of
the  insurance  law,  surplus  line insurers and self-insurance programs
insofar as such documents relate to the claim being litigated;
(ii) if the insurance policy in place is provided, a complete copy  of
any  policy,  contract or agreement under which any person or entity may
be liable to satisfy part or all of a judgment that may  be  entered  in
the action or to indemnify or reimburse for payments made to satisfy the
entry of final judgment as referred to in this paragraph, including, but
not   limited   to,   declarations,   insuring  agreements,  conditions,
exclusions, endorsements, and similar provisions;
(iii) the contact information, including the name and e-mail  address,
of  an assigned individual responsible for adjusting the claim at issue;
and
(iv)  the  total  limits  available  under  any  policy,  contract  or
agreement, which shall mean the actual funds, after taking into  account
erosion  and  any  other offsets, that can be used to satisfy a judgment
described in this subdivision or  to  reimburse  for  payments  made  to
satisfy the judgment.
(2)  A defendant, third-party defendant, or defendant on a cross-claim
or counter-claim required to  produce  to  a  plaintiff  or  third-party
plaintiff  or  plaintiff on a counter-claim all information set forth in
paragraph one of this subdivision must make reasonable efforts to ensure
that the information remains accurate and complete, and provide  updated
information  to  any party to whom this information has been provided at
the filing  of  the  note  of  issue,  when  entering  into  any  formal
settlement  negotiations  conducted  or  supervised  by  the court, at a
voluntary mediation, and when the case is  called  for  trial,  and  for
sixty  days  after any settlement or entry of final judgment in the case
inclusive of all appeals.
(3) For purposes of this subdivision,  an  application  for  insurance
shall  not  be  treated as part of an insurance agreement. Disclosure of
policy limits under this section shall not constitute an admission  that
an alleged injury or damage is covered by the policy.
(4) Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial.
(5)  The  requirements  of this subdivision shall not apply to actions
brought to recover motor vehicle insurance  personal  injury  protection
benefits  under  article  fifty-one  of  the insurance law or regulation
sixty-eight  of  title  eleven  of  the  New  York  codes,   rules   and
regulations.
(g)  Accident  reports.  Except  as  is  otherwise provided by law, in
addition to any other matter which may be subject to  disclosure,  there
shall  be  full disclosure of any written report of an accident prepared
in the regular course of business operations or practices of any person,
firm, corporation, association or other public or private entity, unless
prepared by a police or peace officer for a  criminal  investigation  or
prosecution and disclosure would interfere with a criminal investigation
or prosecution.
(h)  Amendment or supplementation of responses. A party shall amend or
supplement a response previously  given  to  a  request  for  disclosure
promptly  upon  the  party's  thereafter  obtaining information that the
response was incorrect or incomplete when made, or  that  the  response,
though  correct  and  complete  when  made,  no  longer  is  correct and
complete, and the circumstances are such that  a  failure  to  amend  or
supplement  the  response  would be materially misleading. Where a party
obtains such information an  insufficient  period  of  time  before  the
commencement of trial appropriately to amend or supplement the response,
the  party shall not thereupon be precluded from introducing evidence at
the trial solely on grounds of noncompliance with this  subdivision.  In
that  instance, upon motion of any party, made before or at trial, or on
its own initiative, the court may  make  whatever  order  may  be  just.
Further amendment or supplementation may be obtained by court order.
(i)  In  addition  to  any  other  matter  which  may  be  subject  to
disclosure, there shall be full disclosure of  any  films,  photographs,
video  tapes or audio tapes, including transcripts or memoranda thereof,
involving a person referred to in paragraph one of  subdivision  (a)  of
this  section.    There  shall  be  disclosure  of  all portions of such
material, including out-takes, rather than only those portions  a  party

intends  to  use.  The provisions of this subdivision shall not apply to
materials compiled for law enforcement purposes which  are  exempt  from
disclosure under section eighty-seven of the public officers law.