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White v. White

Supreme Court of New York, Monroe

October 17, 2013

Sandra Jo WHITE, Plaintiff,
v.
Daniel P. WHITE, Defendant.

[974 N.Y.S.2d 755] Walter R. Capell, Esq., Davidson Fink LLP, Rochester, attorney for plaintiff.

Michael D. Schmitt, Esq., Rochester, attorney for defendant.

RICHARD A. DOLLINGER, J.

A lawyer asks a disputed question during a deposition: " Okay. Is that right? You're not withdrawing your request for changing custody unless she withdraws her request for child support?"

Opposing counsel directs the witness not to answer, claiming " it is an inappropriate question."

The witness states that he will answer the question and the questioner states that the witness " has to answer the question."

The witness's counsel responds: " he's not making any legal decisions today."

Unprompted, the witness then states: " I would have to consult with my attorney to decide anything about that."

His counsel interjects: " about whether he's withdrawing the petition or not."

The attorneys then decide to do whet attorneys do when conflict in a deposition arises: call the judge. When the judge was unavailable, the attorneys submitted the disputed question to the court for a determination of whether or not the witness was obligated to respond to the question.

The scope and supervision of discovery generally is within the sound discretion of the trial court although such discretion is not unlimited. [974 N.Y.S.2d 756] Tommy Hilfiger U.S.A., Inc. v. Insurance Co. of N. Am., 239 A.D.2d 255, 658 N.Y.S.2d 837 (1st Dept.1997). A party is entitled to full disclosure of all matter " material and necessary" in the prosecution and defense of an action CPLR 3101[a]. The scope of permissible questioning at depositions is generally governed by court rule. A deponent shall answer all questions at a deposition, except;

(1) to preserve a privilege or right of confidentiality,
(2) to enforce a limitation set forth in an order of a court, or
(3) when the question is plainly improper and would, if answered, cause significant prejudice to a person.

See 22 N.Y.C.R.R. ยง 221.2. Unless a question is clearly violative of a witness's " constitutional rights, or of some privilege recognized in law, or is palpably irrelevant, questions (at an examination before trial) should be freely permitted and answered, since all objections other than those as to form are preserved for the trial and may be raised at that time." Roggow v. Walker, 303 A.D.2d 1003, 1004, 757 N.Y.S.2d ...


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