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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: September 7, 2014

Defendant Not Allowed to Subpoena Plaintiffs’ Employees Directly

On August 28, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Town New Development Sales & Marketing LLC v. Price, 2014 NY Slip Op. 32307(U), explaining the application of CPLR 3106 when a party seeks to depose an opponent’s employees.

In Town New Development Sales & Marketing, an employment contract dispute, the defendant moved to compel discovery, including “the depositions of two of Plaintiffs’ employees, nonparties Andrew Heiberger and Wendy Maitland.” The court denied that part of the defendant’s motion, explaining:

When a party seeks to depose a corporate employee, it is well established that a corporation has the right in the first instance to determine which of its representatives will appear for an examination before trial.

[The defendant] seeks to compel the depositions of non-parties Andrew Heiberger and Wendy Maitland, who are both employees of Plaintiffs. When the person sought for a deposition is an employee of the party, the company must be served. Historically, a corporation had the right to designate an employee with knowledge of material and necessary facts.

The addition of CPLR 3106(d) in 1984, however, permits a party seeking a corporate deposition to specify a particular employee in its notice. The corporation is obligated to produce that person unless it provides written notice at least 10 days before the deposition that the requested individual is unavailable, and identifies a replacement.

Against this backdrop, [the defendant’s] motion to compel must be denied as procedurally deficient. [The defendant’s] original notice of deposition of Heiberger was not served on Plaintiffs. Price’s subpoenas duces tecum were served directly on Heiberger and Maitland even though both are clearly employees of Plaintiffs. Since [the defendant] seeks to depose witnesses material and necessary to its defense on alleged breaches of the Agreement, [the defendant] may serve a notice of deposition, pursuant to CPLR 3107, or notice of subpoena, pursuant to CPLR 3106(d), on the Plaintiffs. In the instance Plaintiffs do not designate Heiberger or Maitland, Price may seek relief from this Court.

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

This decision shows the importance of paying attention to the details of the CPLR’s disclosure rules.

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