New Bill Authorizes Non-Parties to Object to Discovery

Governor Cuomo recently signed a bill (A6554) that amends New York’s protective order statute, CPLR § 3103(a), to permit non-parties to object to discovery.

According to the bill’s accompanying memorandum:

This measure would amend CPLR § 3103(a) to expand the delineated persons who may seek the remedy of a protective order in regard to the use of discovery devices such as a subpoena for records.

Presently the statute contemplates protective orders made by the court on its own motion or on motion of a party or a person from whom discovery is sought. Not addressed is a person about whom records are being subpoenaed from either a party or another nonparty. By way of example, if an accountant is subpoenaed to produce the records of clients who are not parties to the litigation, it is unclear under the present statute whether the non-party clients would have standing to object to the production of their records.

It would be an unwarranted anomaly for such non-parties to have less of a right to protect their records than those persons already delineated in the statute.

The text added to CPLR § 3103 by this amendment is underlined and in bold:

(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

While the example given in the legislative memorandum relates to accountants’ records, another (unmentioned) situation in which this new law will likely be invoked is the discovery – not necessarily admissibility at trial – of Facebook and other social media evidence.

An example given by lawyer Eric Turkewitz aptly illustrates the point:

The scenario in which it would come up is easy to foresee: Joe busts his arm in a car collision[].  He writes about it on Facebook. His friends, who have their privacy settings maxed out, respond. Perhaps one of them jokes in a comment or private message, “You been drinking again?”

Time will tell how his plays out in practice.

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