Party Must Produce Deponents for Supplemental Depositions Following Late Disclosure of New Evidence

On October 4, 2022, Justice Andrew S. Borrok of the New York County Commercial Division issued a decision in 39 West 23rd Street, LLC v. Pizzarotti, LLC, 2022 N.Y. Slip Op. 33356(U), ordering a party to produce its deponents for supplemental depositions, at that party's cost, when that party amended its interrogatory responses concerning its damages after these deponents' depositions already took place, explaining:

Pursuant to CPLR 3101(h), a party shall promptly amend or supplement a response when its response is incorrect or incomplete, or when circumstances are such that failure to amend or supplement the response would be materially misleading. Trial courts are vested with broad discretion "in making determinations concerning matters of disclosure" (Schleger v Jurcsak, 186 [**3] AD3d 771, 773, 128 N.Y.S.3d 238 [2d Dept 2020]), and preclusion is justified when there is an untimely exchanged document of which the [*3] admission would constitute an unfair surprise to the opposing party (see Ward v Mehar, 264 AD2d 515, 516, 694 N.Y.S.2d 726 [2d Dept 1999]). In this case, it can not be said that Pizzarotti is surprised by 39 West seeking damages based on 39 West's contract with Ryder Construction. Indeed, Pizzarotti's discovery requests underscore that this was anticipated. However, they have not yet had the opportunity to explore 39 West's revised damages calculation or to explore discovery based on 39 West's additional categories of damages not previously disclosed including the retaking of those depositions. To the extent Pizzarotti wishes to conduct further depositions of Mssrs. Gorey, James Treacy, Stephen Glascock, and Carl Jaccarino tailored to the documents produced after the depositions of those witnesses were taken, they are entitled to do so and 39 West must pay the cost incurred.

Normally, a party gets to depose its adversary only once. But as this case shows, when new documents or information are disclosed after a witness's deposition, the producing party runs the risk of having to produce that witness for a supplemental deposition. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning late-disclosure issues in commercial litigation.