On July 23, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Carlton Group, Ltd. v. Property Markets Group, Inc., 2018 NY Slip Op. 31725(U), refusing to order the deposition of trial counsel, explaining:
Generally, an attorney should only be compelled to testify at an examination before trial when it is shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case. Cross movants have failed to make a showing that no other means exist to obtain the information other than to depose opposing counsel, as they have Zackson’s testimony on this issue. No evidence has been submitted on the cross motion to refute Zackson’s testimony at this time. In their moving or opposition papers, none of the parties refer to Maloney’s testimony on this issue, if any such testimony exists.
Cross movants also contend that Kaiman’s testimony is material and necessary because he wrote and sent many relevant emails and received responses, he drafted most of the organizational documents for the subject real estate project, caused the formation of corporate entities for the project, and negotiated and closed the acquisition of the real estate at issue. Merely because an attorney has relevant knowledge or was involved in the transaction at issue does not make that attorney’s testimony necessary. At this point, cross movants have failed to make an adequate showing that Kaiman’s testimony is crucial or that the relevant information may not be obtained from other sources.
(Internal citations omitted).
A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called “discovery”). The scope of discovery in New York is broad, but as this decision shows, it is not unlimited. Courts are very reluctant to allow a litigant to depose their opponent’s attorney. Contact Schlam Stone & Dolan partner John Lundin at email@example.com if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).
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