Tag Archives: Deposition

If You Fail To Comply With C.P.L.R. 3116, You Can’t Use A Deposition Transcript To Cross Examine A Witness, Well Maybe You Can’t.

In Ramirez v Willow Ridge Country Club, Inc., 84 AD3d 452, (1st Dept 2011) the First Department, for the first time by any Appellate Court, from what I could find, approved precluding the use of a deposition transcript during cross-examination on the ground that there had been a failure to show compliance with CPLR 3116. In its decision, the Court said:

[T]he court properly precluded the use of Jack’s unsigned deposition transcript during Jack’s cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days.

CPLR 3116 (a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with CPLR 3116 (a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005] ; Lalli v Abe, 234 AD2d 346 [1996]).

It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116 (a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

The Second Department cases that the Court relied upon to preclude the use of the deposition, deal with the use of depositions on motions for summary judgment. Therefore, it would seem that any exception to the general rule that prohibits the use of unsigned depositions on a motion for summary judgment, would permit the use of such a deposition on cross-examination.

The major exception is an unsigned but certified deposition. In Delishi v. Property Owner (USA) LLC 31 Misc.3d 661, 665-666, (Sup. Kings 2011) the court researched the use of an unsigned but certified deposition on a motion for summary judgment and said:

There is also limited authority in the First and Fourth Departments that “[a]n unsigned but certified deposition transcript of a party can be used by the opposing party as an admission.” … There is logic to this position, but it is apparent from the authorities cited above that it has not commended itself to the Second Department, and this Court is bound to follow the Second Department … (citations omitted.)

But See In re Estate of Ciraolo 2005 WL 3636709, 2 (Kings Sur., 2005) where the court said, in deciding a motion for summary judgment motion, that “just as an affidavit may be used, an unsigned certified deposition may also be used. The certification of the deposition is the equivalent to an affidavit.”

So if an unsigned but certified deposition has not been sent to a witness timely, one might argue that it can be used on cross-examination as it is certified, as same is usable on a motion for summary judgment.

*Duties And Obligations of a Lawyer Upon Learning After The Fact, That a Client Has Lied About a Material Issue In a Civil Deposition.

On April 1, 2009, the Rules of Professional Conduct replaced the New York Code of Professional Responsibility. Last month the New York Committee on Professional Ethics issued it first ruling based upon the new rules and abandoned an opinion of 14 year. And while ethics opinion are not binding on the Courts, it is, I believe, rare that they are ignored.

But note, here the opinion presupposes that the lawyer has actual knowledge of the falsity of the testimony and that actual knowledge may be inferred circumstantially.

Date Issued: March 1, 2010

Based upon RPC 3.3,1.6 (set forth below.)

QUESTION: What are a lawyer’s duties and obligations when the lawyer learns after the fact that the client has lied about a material issue in a civil deposition?

DIGEST ANSWER: A lawyer who comes to know after the fact that a client has lied about a material in a deposition in a civil case must take reasonable remedial measures, starting by counseling the client to correct the testimony. If remonstration with the client is ineffective, then the lawyer must take additional remedial measures, including, if necessary, disclosure to the tribunal. If the lawyer discloses the client’s false statement to the tribunal, the lawyer must seek to minimize the disclosure of confidential information. This opinion supersedes NYCLA Ethics Opinion 712.
Ethics Opinion 712, issued in March 1996, provided the following digest answer to a similar question:

DIGEST ANSWER: Where A Client Advises Lawyer That Prior Deposition Testimony Was False, Lawyer May Continue In The Representation Provided That The Lawyer Does Not Knowingly Use The Perjured Testimony Or False Evidence.

The Question in 712 however was more expansive:

QUESTION: The inquirer’s client is a defendant in a civil litigation. After the client provided deposition testimony to the plaintiff, the client advised the lawyer that certain of the testimony was untrue. The facts that are the subject of the false deposition testimony are material to the case so that no objection as to relevance will be available. The deposition transcript, which remains in the lawyer’s possession, has not been signed by the client. The client has rejected the lawyer’s advice to correct the transcript or otherwise rectify the fraud. Discovery has been completed and the case is now on the trial calendar. The inquirer has asked what action he mayor must take to withdraw from the representation and/or to notify the trial judge or opposing counsel of the false deposition testimony of his client.

RULE 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.

RULE 1.6: Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.