Section 3101(a) of the Civil Practice Law and Rules provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by parties and non-parties alike. Although the parties are usually deposed, non-parties whose depositions could be useful to the parties are often more difficult to identify. As a consequence, a jury may be left to resolve important issues solely based upon the testimony of the parties and their retained experts. The question becomes whether this serves the interests of justice and the litigants, and frequently the answer will be that it does not.
Non-party depositions will add time and expense to the preparation of the defense for trial, and a corresponding benefit may not initially be obvious. There is uncertainty as to the potential outcome of the depositions, and the other attorneys who examine the witness may pursue their own agendas and thereby elicit testimony which is not helpful to the interests of the proponent of the deposition. There are also instances in which the testimony of a fact witness may be very helpful in clarifying factual issues prior to trial. The challenge is to determine in advance which non-party should be deposed.
Opinion Testimony
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