CPLR § 3102 (c): A Brief Overview
One of the more confusing provisions of the CPLR is Rule 3102 (c) which provides that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Practitioners routinely express uncertainty as to what disclosure qualifies as “aid in bringing an action”.
Pre-litigation pursuant to Rule 3102 (c) may be used in two primary instances. First, a putative plaintiff might require the court’s aid in order to obtain the identity of a necessary party as illustrated by In the Matter of Cohen v. Google, Inc., 25 Misc.3d 945 (Sup. Ct. (NY) 2009). In Cohen, Google’s platform hosted the website of an anonymous blogger who allegedly posted embarrassing pictures and derogatory statements about the petitioner. The Court granted the petitioner’s request pursuant to Rule 3102(c) directing Google to disclose the identity of the blogger—an intended defendant—to aid petitioner in framing her cause of action for defamation.
Second, a party may obtain pre-litigation discovery to preserve necessary evidence when there is a strong possibility that the evidence will be lost or destroyed. To illustrate, in Stanco v. Steinberg, 254 A.D.2d 363 (2d Dep’t 1998), the Second Department affirmed the Supreme Court’s decision permitting a pre-action deposition after the petitioner demonstrated that the deponent was “in extremis” (nearing death), and her testimony would be necessary for the intended litigation.
On the other hand, a prospective plaintiff is not entitled to pre-litigation discovery if he or she already possesses sufficient information to bring a complaint. See Matter of Zeigler v. City of New York, 65 A.D.3d 1159 (2d Dep’t 2009)(reversing order granting pre-action disclosure pursuant to CPLR § 3102(c), because “petitioner had sufficient information to frame a complaint without the discovery requested”). Similarly, Rule 3102(c) cannot be used to uncover proof of an intended cause of action or to determine if a cause of action might exist. See Stump v. 209 E. 56th Street Corp., 212 A.D.2d 410 (1st Dep’t 1995)(denying petition and explaining that CPLR § 3102(c) “cannot be used by a prospective plaintiff to determine whether he has a cause of action”).
The following are a couple of practice tips to keep in mind. Requests for pre-litigation disclosure should be made by petition and order to show cause. Further, such petitions may only be brought in a court that would have subject matter jurisdiction over the future litigation, e.g. the Civil Court will not entertain a request for pre-litigation disclosure in connection with a case that must be commenced in Supreme Court.
Recently, FRENCH & CASEY LLP successfully moved to dismiss a Rule 3102 (c) petition brought against our client by establishing that the Suffolk County Supreme Court would not have jurisdiction to hear the petitioner’s intended causes of action. In The Matter of J. Petrocelli Contracting, Inc., No. 09474/2013 (Sup. Ct. (Suffolk Cty.) Aug. 29, 2013)