In Reitman v Ronell, No. 157658/2018, 2019 WL 2413149, at *1–2 (N.Y. Sup Ct, New York County June 04, 2019) – in which plaintiff alleges, inter alia, claims for gender discrimination, quid pro quo sexual harassment, and hostile educational environment – the court considered and ruled on plaintiff’s motion for a protective order under CPLR 3101(a) relating to interrogatories served by defendants (which were served simultaneously with a deposition notice with defendants’ answer).
The court explained the general principles governing discovery (paragraphing modified):
CPLR §3101 (a) provides that “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by a party, or the officer, director, member, agent or employee of a party.” “The phrase ‘material and necessary’ should be ‘interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason”’ (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ; see also Andon v 302-304 Mott St Assoc., 94 NY2d 740, 746, ).
“The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the devices it wishes to use and the order in which to use them” (Barouh Eaton Allen Corp. v International Business Machines Corp., 76 AD2d 873 [2d Dept 1980]; see also Edwards-Pitt v. Doe, 294 AD2d 395 [2d Dept 2002]). Similarly, there is no express limitation to the number of times a discovery device may be engaged (see L.K. Comstock & Co. v New York, 80 AD2d 805, 806 [1st Dept 1981]). However, the prerogative of a party to chart its own course through discovery is subject to the court’s power to regulate discovery to prevent abuse (see Samide v Roman Catholic Diocese, 16 AD3d 482, 483 [2d Dept 2005]). This “includes the discretion to direct the priority in which the parties may use disclosure devices if [the court] finds, under the particular circumstances, that the action will be expedited by the use of one device prior to another” (Geffner v Mercy Med. Ctr., 83 AD3d 998 [2d Dept 2011]). Noticing a deposition simultaneously with service of a demand for interrogatories while not per se barred, would appear to be a practice that is frowned upon (see A. Colish, Inc. v Abramson, 150 AD2d 210, 211-212 [1st Dept 1989]; Barouh Eaton Allen Corp. v International Business Machines Corp., supra). As is serving interrogatories where a deposition has been commenced but not completed under the theory that one method of disclosure should be completed before resorting to another (see Samsung Am., Inc. v Yugoslav-Korean, Consulting & Trading Co., 199 AD2d 48 [1st Dept 1993]; Curran v Upjohn Co., 122 AD2d 929 [2d Dept 1986]; Giffords Oil Co. v Spinogatti, 96 AD2d 851 [2d Dept 1983]). *2 However, there does not seem to be a consensus of opinion on whether interrogatories or a deposition by oral questions should be conducted first[.]
Applying the law, the court noted that, under the circumstances, “Defendants’ choice to initially pursue interrogatories is justifiable depending upon the propriety of the interrogatories.”
It then turned to evaluate each of the defendants’ interrogatories, reaching different conclusions as to each:
As to NYU, its interrogatories consist of 43 inquiries and are 14 pages in length. Contrary to Plaintiff’s assertions, the interrogatories are narrow in scope, were made with sufficient particularity and are appropriate in all respects. Ronell’s interrogatories, on the other hand, consist of 102 inquiries –approximately 145 with subcategories- and are 22 pages in length. Further, Ronell’s inquiries are directed to 103 of the 277 paragraphs in the complaint and touch on nearly every substantive factual issue in the complaint. This demand is plainly prolix and patently burdensome (see Wesche v Wesche, 51 AD3d 909 [2d Dept 2008]; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055 [4th Dept 2006]; Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469 [2d Dept 2002]; Stever v Stever, 10 AD3d 358 [2d Dept 2004]; EIFS, Inc. v Morie Co., 298 AD2d 548 [2d Dept 2002]). As such, responses to this discovery demand will not, in the court’s opinion, speed discovery in this matter (see Samide v Roman Catholic Diocese, supra at 483). Under the circumstances, given the voluminous nature of the demand, “the court will not prune the requests even though some of them may be proper