Key Takeaway
New York appellate court clarifies that deposition rulings cannot be appealed as of right, even when made through formal motion practice rather than during examination.
Understanding Appellate Rights for Deposition Rulings in New York
Depositions, also known as examinations before trial (EBTs), are critical components of the discovery process in New York litigation. During these sworn examinations, attorneys question witnesses under oath to gather information and testimony that will be used at trial. However, disputes frequently arise during depositions about what questions must be answered and what information must be disclosed.
When attorneys disagree about the scope of questioning during a deposition, they may seek court intervention through motions to compel testimony or protective orders. A recent Second Department decision has clarified an important procedural point about when parties can appeal unfavorable rulings on these discovery disputes. This ruling affects the strategic timing of appeals and emphasizes the limited circumstances under which deposition-related decisions can be immediately challenged in appellate courts.
The distinction between immediately appealable orders and those that must wait until final judgment has significant implications for litigation strategy and case management.
Jason Tenenbaum’s Analysis:
Gargano v Langman, 2020 NY Slip Op 04923 (2d Dept. 2020)
“An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and is not appealable as of right, even where it was made upon a full record and on the plaintiff’s motion to compel responses”
EBT rulings – even if made in the context of a subsequent motion – may only be appealed as of right.
Key Takeaway
The Second Department has established that deposition rulings cannot be appealed as of right, regardless of whether they arise during the examination itself or through subsequent motion practice. This means parties must generally wait until final judgment to challenge unfavorable discovery rulings, potentially affecting litigation timeline and strategy decisions throughout the case.
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