Opinion
01-30-2024
PEOPLE of the State of New York etc., Plaintiff-Respondent, v. The NATIONAL RIFLE ASSOCIATION OF AMERICA, Defendant-Appellant, Wayne Lapierre et al., Defendants.
Brewer, Attorneys & Counselors, New York (Alassandra Cole Olsewski of counsel), for appellant. Letitia James, Attorney General, New York (Matthew William Grieco of counsel), for respondent.
Brewer, Attorneys & Counselors, New York (Alassandra Cole Olsewski of counsel), for appellant.
Letitia James, Attorney General, New York (Matthew William Grieco of counsel), for respondent.
Singh, J.P., Kapnick, Kennedy, Higgitt, Michael, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered October 17, 2022, which denied the motion of defendant National Rifle Association (NRA) for a deposition of the New York State Office of the Attorney General (N.Y.AG), unanimously affirmed, without costs.
Supreme Court was correct in applying the standard set forth in Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., 164 A.D.3d 401, 84 N.Y.S.3d 82 (1st Dept. 2018). On this record, we find that NYAG was acting not as a plaintiff but as counsel to plaintiff, namely the People of the State of New York. NYAG possesses no personal knowledge of any facts at issue. Rather, all factual information in NYAG's possession comes from documents it has reviewed or from third parties it has interviewed. The documents are turned over in discovery and defendant could itself depose the third parties. A deposition of NYAG would not produce material and necessary discovery, and risks disclosure of privileged information or protected work product (see People v. Katz, 84 A.D.2d 381, 384, 446 N.Y.S.2d 307 [1st Dept. 1982]).
Applying this standard, Supreme Court’s denial of NRA’s motion was within its "broad discretion regarding discovery" (M.P. v. Jewish Bd. of Family & Children’s Servs., 211 A.D.3d 584, 585, 181 N.Y.S.3d 55 [1st Dept. 2022] [internal quotation marks omitted]; see also Gumbs v. Flushing Town Ctr. III, L.P., 114 A.D.3d 573, 574, 981 N.Y.S.2d 394 [1st Dept. 2014] ["Notwithstanding our own discretion, deference is afforded to the trial court’s discretionary determinations regarding disclosure"] [internal quotation marks omitted]). NRA does not dispute the Special Master’s finding that NYAG turned over all nonprivileged documents in its possession. Rather, NRA contends that it needs to learn NYAG’s legal theories to avoid unfair surprise at trial. The proper way to pursue NYAG’s legal theories, as the Special Master stated, was through contention interrogatories. Supreme Court acted within its discretion in requiring NRA to pursue the absence of metadata through interrogatories rather than a deposition of NYAG.