Both the statutory framework for discovery and the applicable case law establish that New York has long favored open and far-reaching pre-trial discovery.1 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.”2 Unfortunately, when it comes to the discovery of information in the possession of non-party physicians who have treated plaintiffs in malpractice cases, arbitrary limitations have often been imposed contrary to this liberal policy.
It is widely recognized that even before the amendment of CPLR §3101 (a) in 1984, when “adequate special circumstances” were a prerequisite to non-party discovery, the appellate departments favored disclosure so long as the party seeking it “met the low threshold of demonstrating a need for the disclosure in order to prepare for trial.”3 As recently as 2014, the Court of Appeals emphasized that CPLR §3101 (a) must be
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