The Exclusion of Plaintiffs from Depositions

Saturday, August 26, 2006 | 0

By Larry Rogak

Hanna v Graphic Arts Mut. Ins. Co., 2006 N.Y. Slip Op 51547(U) (Decided on May 17, 2006) (Supreme Court, Oneida County) (Julian, J.)

The Plaintiffs suffered a fire loss on Dec. 5, 2003 at their property in Clayville, N.Y. The property and contents were insured by Graphic Arts.

Graphic Arts paid for the dwelling loss and clean up, but disputed the claim for personal property loss, alleging that the inventory provided by the plaintiffs is grossly exaggerated. Graphic Arts alleged that the plaintiffs are guilty of fraud and concealment in regard to their claim.

Graphic Arts wished to take the plaintiffs' depositions separately and prevent communication about that testimony until both have testified. The plaintiffs countered that the due process and the rules of discovery permit a party to be present at all phases of a legal proceeding.

The court, citing Matter of Estate of Czachor, 137 AD2d 915, 524 NYS2d 582 [3rd 1988], held that "...under appropriate circumstances, a court may exclude a party from a pretrial deposition. Here, petitioners' interests are virtually identical and each is represented by the same attorney. With these circumstances prevailing, to allow each petitioner to testify in the presence of the other would clearly work an unfair advantage in their favor. While trial courts are vested with broad discretion in supervising disclosure, in the interest of preserving respondent's right to the spontaneous, uncolored testimony of each petitioner, we find that separate depositions are in order..."

"The Defendant's allegations here are that, in effect, the plaintiffs have conspired to falsely inflate their claim. Their interests are identical. They are uniquely possessed of the underlying facts and their depositions are of uniquely supreme importance to whatever defense the defendant may be able to fashion to their claim. The defendant is entitled to some leeway, and the relief it requests is reasonably related to a fair defense of the case. It is difficult to see how the plaintiffs would suffer any real prejudice from the relief requested."

"Accordingly, the plaintiffs shall be deposed separately, their attorney shall not report the substance of the testimony of the first to the second to be deposed and the second to be deposed shall not see the transcript of testimony prior to testifying."

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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