N.Y. Comp. Codes R. & Regs. tit. 16 § 5.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 5.8 - Scope of discovery

(a) Discovery requests should be tailored to the particular proceeding and commensurate with the importance of the issues to which they relate. They should be limited to materials or information that:

(1) the requesting party expects to use in cross-examination or in preparing its case;

(2) are not already possessed by or readily available to that party; and

(3) are not conveniently obtainable elsewhere. Unduly broad requests will not be allowed.

(b) Discovery that is unreasonably cumulative, repetitive, or duplicative will not be allowed.

(c) In general, a party will not be required to develop information or prepare a study for another party. In unusual circumstances, however, where a party from which discovery is sought uniquely possesses the information needed for a study and the ability to prepare the study (for example, computerized data and a program for manipulating them), a request to develop information may be granted if the information appears material and the request, considered on its own and in the context of other similar requests in the proceeding, does not appear unduly burdensome or costly. The presiding officer may condition the granting of such a request on the requesting party's agreement to bear specified costs of performing the study. In no event would a party preparing a study for another be required to testify in support of the study or be constrained in its presentation of its own position on that account.

(d) Claims of evidentiary privilege may be raised by parties in their objections to discovery requests. In resolving claims that information is privileged or exempt from discovery, the presiding officer shall be guided but not bound by the Civil Practice Law and Rules and case law pursuant to it and may conduct in camera examinations, issue protective orders, and adopt other measures suited to the particular situation.

(e) Claims that information is exempt from discovery on the grounds it is a trade secret, confidential commercial information or critical infrastructure information shall be treated in accordance with section 6-1.4 of this Title.

(f) Requests for documents in the control of trial staff shall be subject to the provisions of this Part. If trial staff asserts the "official information privilege" pursuant to section 87(2)(g) of the Public Officers Law, that assertion will be sustained only upon a showing that the interest in the confidentiality of the document at issue outweighs the interest of the requesting party in its disclosure. Documents within the control of trial staff include those prepared by persons currently or previously designated to serve on it and those prepared by other employees of the department and reviewed by, or in the possession of, a trial staff member in the course of his or her participation in the case in which the discovery request is made.

(g) Denial of discovery pursuant to this Part does not preclude the granting of a request for a document pursuant to the Freedom of Information Law, where warranted.

N.Y. Comp. Codes R. & Regs. Tit. 16 § 5.8