Key Takeaway
Learn why attorneys cannot object during non-party depositions in NY personal injury cases. Court ruling explains CPLR 3113(c) applies equally to trial and deposition testimony.
I am going to copy and paste what I think is the pertinent portion of the decision in Thompson v Mather, 2010 NY Slip Op 01239 (4th Dept. 2010):
“In its order deciding the motion, Supreme Court directed that plaintiff and defendants are to “consider providing general releases to the … with respect to their initial treatment of ” and that, if such releases are provided, plaintiff will “be entitled to have a videotaped deposition of during which deposition the attorneys for the shall not be permitted to speak … .” The order further provided that, if the general releases are not provided, then the attorneys for the parties and the physicians “shall seek to work out ground rules for a non-party deposition” of the physicians. The order then provided that, if the attorneys are unable to “work out ground rules,” plaintiff will not be entitled to take the videotaped depositions of the physicians and they “are to be subpoenaed to testify” at trial.
We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” Although counsel for the physicians correctly conceded at oral argument of plaintiff’s motion in Supreme Court that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113 (c). Indeed, we discern no distinction between trial testimony and pre-trial videotaped deposition testimony presented at trial. We note in addition that 22 NYCRR 202.15, which concerns videotaped recordings of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivision entitled “Filing and objections” (see 22 NYCRR 202.15 , ). We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.
Lastly, we note that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand. Contrary to nonparty respondents’ contention, the fact that the statute of limitations has not expired with respect to a nonparty treating physician witness for the care that he or she provided to a plaintiff provides no basis for such a condition.”
Here is what this case says: 1) If you are a non-party at a deposition, then your attorney cannot say anything. It is similar to when your client testifies before a grand jury in New York. You as an attorney can sit there, but you cannot utter a peep. 2) A court, in this type of situation, must unconditionally compel a witness with knowledge of the facts to testify at a deposition. 3) I also think this case represents the reason behind the enactment of CPLR Sec. 3117(a)(4). But see, S.J. Pahng, M.D., P.C. v. Progressive Northeastern Ins. Co., 20 Misc.3d 137(A)(App. Term 2d Dept. 2007).
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Legal Update (February 2026): Since this 2010 post, CPLR 3113 and related discovery provisions may have been amended through legislative changes or court rule modifications. Additionally, appellate decisions interpreting non-party deposition procedures and counsel participation rights may have evolved. Practitioners should verify current CPLR 3113 provisions and recent case law regarding non-party witness representation during depositions.
