Opinion
108186.
Decided May 12, 2004.
Claimant's attorney: Keyan Price, Pro Se.
Defendant's attorney: Hon. Eliot Spitzer, NYS Attorney General.
By these related motions, claimant is attempting to get permission to conduct examinations before trial of two other inmates, Leron Williams and Marc Rodriquez, as well as Correction Officer P. Gonzales. Pro se litigants are not included among those who are authorized to issue subpoenas (CPLR 2302 [a]); Chopak v. Marcus, 22 AD2d 825, 826 [2d Dept] 1964). However, a Court must issue any subpoena either directing the production of a prisoner ( id.) and must issue any order directing the deposition of persons who are "confined under legal process" (CPLR 3106[c]). The purpose of the latter requirement is to "prevent the disruption of prison routine and to provide a mechanism of court oversight before a correctional facility may be compelled to open its doors for the deposition of one of its prisoners" ( Nalbach v. McDonald, 244 AD2d 536 [2d Dept 1997], citing to Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3106:6, at 435; 6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3106.06). While there is inevitably some disruption to prison routine whenever a deposition is ordered, such examinations are considered preferable to having inmate witnesses called to testify at trial ( see Sebastiano v. State of New York, 112 Misc 2d 1027 [Ct Cl 1981] [denying a request for subpoenas to require that inmates be present to testify at trial and suggesting that the pro se claimant consider conducting depositions instead]; CPLR 3117 [a] [3] [iii] [permitting a deposition to be used at trial if the witness is imprisoned]).
Motion No. M-67926 asks that the Court compel the attendance of the two inmate witnesses at the depositions; Motion No. M-67927 asks for an order directing the examination of all three witnesses and related relief with respect to the manner in which the depositions are taken; Motion No. M-67925 asks for a subpoena directing claimant to be transferred to the location where the depositions will be taken; and Motion No. M-67928 again asks for an order directing that the two inmate witnesses be deposed upon oral questions.
In deciding whether to order that an inmate's deposition be taken, the Court must determine if the expected testimony of the witness is "relevant and necessary" for the preparation of the trial ( EDP Medical Computer Systems v. Sears Roebuck Co., 193 AD2d 645, 646 [2d Dept 1993]). Where the witness to be deposed is a nonparty, there must also be some special circumstances or reasons for obtaining information from them (CPLR 3101[a][4]).
As with the examinations before trial of any witness, the responsibility for paying the expenses incurred in conducting depositions of incarcerated persons rests with the party requesting the examination, even if that party is an inmate himself and that inmate qualifies for poor person's status pursuant to CPLR 1101 ( Gittens v. State of New York, 175 AD2d 530, 531 [3d Dept 1991]; Mapp v. State of New York, 69 AD2d 911 [3d Dept 1979]; Sebastiano v. State of New York, supra; Court of Claims Act § 18). Whenever the deposition, or court appearance, of a nonparty inmate is ordered, any additional costs associated with transporting that prisoner and guarding him or her during transport, remain the responsibility of the Department of Correctional Services ("DOCS"). The party who subpoenaed the inmate is responsible only for paying the statutory witness fee and mileage allowance (CPLR 2303):
Nowhere does the CPLR make any exception for witness fees for inmates, and it is presumed that the Legislature, in making the law, weighed the potential expense to the State against the "chilling" effect the imposition of additional costs on private persons would have on the truth-seeking process and opted in favor of an unhampered truth-seeking process. Had the Legislature intended to make an exception to the standard witness fees or impose conditions other than that the subpoena be issued by a court which procedure already serves to eliminate frivolous requests and unnecessary expense it certainly could and would have done so. (citations omitted) Matter of State of New York Department of Correctional Services, 142 Misc 2d 380, 381 [Sup Ct., Orange Co. 1989]). A claimant may legitimately reduce the expenses associated with taking a deposition, however, by recording it on audio tape (CPLR 3113; Rule 206.11 [j, k] of the Uniform Rules for the Court of Claims; Lesane v. State of New York, Ct Cl, UID No. 2000-009-438, Claim No. 102912, Motion No. M-62427, Nov. 16, 2000, Midey, J. Discovery devices that are less expensive and that intrude less into the orderly operation of the prisons would be preferred when information is sought from incarcerated persons, but finding a workable, different alternative is not easy. A deposition on written questions (CPLR 3109) eliminates the need to physically move either the deponent or the inmate claimant, this device still requires the presence of an officer to read the questions and some method of recording the responses of the witness to those questions. Notices to admit (CPLR 3123) and interrogatories (CPLR 3131) are far less cumbersome and costly, but they are not available for use on nonparties ( Strax v. Granoff Walker, 227 AD2d 252 [1st Dept 1996]; Carp v. Marcus, 116 AD2d 854, 856 [3d Dept 1986). With respect to interrogatories, however, it appears that some courts are of the opinion that a judge may direct interrogatories be served on nonparties ( see Murray v. New York City Health Hospitals Corp., 215 AD2d 736 [2d Dept 1995]; Phelps v. State of New York, Ct Cl UID #2001-010-045, Claim No. 102304, Motion No. M-63483, June 26, 2001, Ruderman, J.). This power is part of the Court's inherent power to oversee and supervise discovery (CPLR 3103, 3104).
In Motion No. M-67927, claimant also seeks particular relief in connection with the costs and tasks associated with the taking of depositions. He asks that the deposition be conducted by the "Special Term Clerk of the Court"; that the transcripts be maintained at the Court; that claimant be given a copy of the transcript free of charge; and that the stenographer's fee be waived or recovered from any award subsequently made to claimant (Affidavit, Motion No. M-67927, ¶¶ 7, 8). Assuming, arguendo, that claimant would qualify to proceed as a poor person (CPLR 1101, 1102), the benefits conferred by such status do not include assistance with the costs of discovery ( see, Carter v. County of Erie, 255 AD2d 984 [4th Dept 1998]). Nor does Civil Rights Law § 79(3) provide for the recovery of any expenses advanced by DOCS other than the costs associated with transporting claimant himself.
As to the relevance and necessity of the requested depositions, claimant states only that inmates Williams and Rodriguez were eye witnesses to the incident in which claimant was injured. While this would make their testimony relevant, claimant has not shown that it is "necessary" to obtain their testimony. "[S]omething more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness" ( Fraser v. Park Newspapers of St. Lawrence, Inc., 257 AD2d 961, 962 [3d Dept 1999]; see also Jira v. Levin-Epstein, 172 AD2d 495 [2d Dept 1991]). To make the necessary showing, the party seeking permission to depose a nonparty inmate should spell out (or provide an affidavit establishing) the anticipated testimony; establish that the information the witness possesses is somehow unique and not merely cumulative to what claimant will relate and/or what is recorded in any documents concerning the incident, and establish that the information cannot be obtained from another source. In addition, although claimant does not provide and in fact may not have, information about the current location of these inmates, such knowledge is necessary for the Court to assess and weigh the impact that ordering these depositions would have on the State prison system. Because the facts of this case seem relatively straightforward and not complex, the Court questions whether the information these inmates could provide is in fact necessary for the effective prosecution of this action.
For the reasons set forth above, claimant's motions are denied. This ruling is made without prejudice to claimant's right to bring another motion requesting the same relief on proper submissions.
Appendices:
The following papers were read on claimant's motions relating to his request to depose two inmate nonparty witnesses and a correction officer:
1. Notice of Motion and Supporting Affidavit of Keyan R. Price, pro se: Motion No. M-67925
2. Notice of Motion and Supporting Affidavit of Keyan R. Price, pro se: Motion No. M-67926
3. Notice of Motion and Supporting Affidavit of Keyan R. Price, pro se: Motion No. M-67927
4. Notice of Motion and Supporting Affidavit of Keyan R. Price, pro se: Motion No. M-67928
5. Affirmation in Opposition of Glenn C. King, Esq., AAG
6. Claimant's reply
Filed papers: Claim; Answer