Court Refuses To Compel Party To Produce Outside Consultant For Deposition As A Party Witness

Posted: November 13, 2026 / Written by: Ian Weiss / Categories Discovery/Disclosure, Motion to Compel, Court Rules/Procedures

Court Refuses To Compel Party To Produce Outside Consultant For Deposition As A Party Witness

On October 27, 2026, in Castle Apparel Ltd. v. Del Vecchio, Index No. 655335/2021, Justice Robert R. Reed of the New York County Commercial Division denied defendants’ request, raised in a Commercial Division Rule 14 discovery submission, for an order compelling plaintiffs to produce a consultant for deposition as a party witness. Defendants contended that the consultant had served as a document custodian for plaintiffs and had advised and negotiated for plaintiffs on matters defendants considered critical. Plaintiffs responded that the consultant was employed by a nonparty entity, had never been their employee, and was not someone they had the ability to compel to appear. Siding with Plaintiffs, the Court explained:

In New York, it is well settled that a party cannot be compelled to produce a nonparty witness for deposition (Natl Union Fire Ins Co of Pittsburgh PA v TransCanada Energy USA, Inc. (967 NYS2d 636 [Sup Ct 2013]). The court has rejected requests that seek to direct a party to use “best efforts” to produce a nonparty witness (Doomes v Best Transit Corp., 303 AD2d 322, 322-23 [1st Dept 2003]), and will not order that a party produce a former employee, or, as in this case, an outside consultant, who was never a party employee (Natl Union Fire Ins Co of Pittsburgh PA, 967 NYS2d at 636). . . .

The New York Civil Practice Law and Rules provide for disclosure from nonparty entities and directs that discovery from nonparty entities be sought by subpoena (CPLR §3101(a)(4); CPLR §3120; Kapon v Koch, 23 NY3d 32, 36, [2014]). Alternatively, defendants may make a showing sufficient to establish entitlement to an open commission. Under either circumstance, it is defendants who carry the burden of requesting and obtaining discovery from nonparty entities, making defendants’ request for an order compelling plaintiffs to produce a nonparty witness improper. (citation omitted)

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning depositions of nonparty witnesses.

To read more about how parties obtain deposition testimony from witnesses associated with an adversary and from nonparties, see Schlam Stone & Dolan’s related Commercial Division Blog posts on a decision holding that depositions of a party’s employees must be noticed to the party rather than subpoenaed from the employees directly and a decision denying a commission where the movant did not show that the out-of-state deponents would not cooperate with a notice of deposition.