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Current Developments in the Commercial Divisions of the
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Posted: July 6, 2014

Commissions for Out-of-State Discovery Not Issued When No Showing that Proposed Deponent Would Not Give Discovery Voluntarily

On June 30, 2014, Justice Destefano of the Nassau County Commercial Division issued a decision in Vasomedical, Inc. v. Barron, 2014 NY Slip Op. 51015(U), denying a motion for commissions to take discovery outside New York.

In Vasomedical, the defendants sought commissions to take depositions outside New York state. Except for the application that was unopposed, the court denied the motion, explaining:

Pursuant to CPLR 3108, a party may take an oral deposition outside the state under an open commission where it is demonstrated to be necessary or convenient. . . . In order to justify the issuance of a commission to take the deposition of an out-of-state non-party witness, the party seeking the commission must demonstrate the information sought is material and necessary to the prosecution or defense of the claims. The moving party must establish that the witness possesses relevant evidence, or that an examination of the witness would be reasonably calculated to lead to the discovery of information bearing on the claims or defense at issue.

Generally, however, the party seeking an open commission must demonstrate not only that the information sought is necessary to the investigation of the claim but also that a voluntary appearance or compliance by the witness is unlikely or that discovery cannot be obtained by stipulation or the cooperation of the witness either in New York or the other state. Absent any showing that the the proposed out-of state deponent would not cooperate with a notice of deposition or would not voluntarily come within this State or that the judicial imprimatur accompanying a commission will be necessary or helpful when the designee seeks the assistance of the foreign court in compelling the witness to attend the examination, the moving party fails to demonstrate that a commission is necessary or convenient
.
Here, irrespective of whether the Defendants have demonstrated that the testimony of the non-party witnesses and the information sought is relevant, the present application is devoid of any information concerning counsel’s efforts, if any, to obtain the cooperation and voluntary appearance of the non-party witnesses.

(Internal citations and quotations omitted) (emphasis added).

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