Witness Protection No Shield at Deposition (NY)

Plaintiffs often try to avoid the disclosure requirements in New York. However, as M. C. v Sylvia Marsh Equities, Inc. illustrates, a plaintiff who initiates a lawsuit waives various objections – including those provided by the witness protection program.

In M.C., the plaintiff was allegedly injured when the bathroom ceiling in her apartment collapsed. During her deposition, she refused to answer certain because she was a participant in the federal witness protection program. The lower court denied defendant’s motion to compel the plaintiff  to answer questions related to a program frequently used to protect  criminals who have cooperated with the federal authorities.

On appeal, the Appellate Division directed the plaintiff to appear for a supplemental deposition and answer questions about the circumstances surrounding her entry into the witness protection program.   Plaintiff cannot use her entry into the program to shield her from “the adverse effects of the litigation she has initiated.” Thus, the facts and circumstances surrounding her entry into the program are material and fair game for deposition inquiry. The court offered the plaintiff a fig leaf: the transcript of the supplemental deposition and any information disclosed at that deposition should be filed under seal.

Thus, where a plaintiff objects to providing information at a deposition, the defense should thoroughly question the plaintiff about the facts and circumstances surrounding any objection. As M.C. demonstrates, litigation is not meant for the fainthearted so the plaintiff cannot avoid answering questions that she deems uncomfortable or intrusive, particularly where that circumstance is due to her past criminal history.

Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com.