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CPLR 3102c Pre Discovery
CPLR 3102c Pre Discovery
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The availability of pre-action discovery as a legal remedy belies the sense of many
practitioners that alleged wrongdoing must be linked to a specific wrongdoer to be
actionable. While a cause of action at its essence is a set of facts that give one person
the legal right to hold another person responsible for resulting damages, with pre-
action discovery a plaintiff formulates a cause of action from the facts before
knowing who to hold responsible for the damages that flowed from those facts.
This article will explore the general implications of initiating legal action without an
identified defendant, how New York courts have applied this rule of civil procedure,
and the mechanics of pre-action discovery.
CPLR 3102(c)
CPLR 3102(c) provides: “Before 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.” Key to the availability of pre-action disclosure in New York is the
petitioner’s ability to demonstrate to the court a meritorious cause of action.
https://www.law.com/newyorklawjournal/2018/04/02/pre-action-discovery-the-underutilize... 4/3/2018
Pre-Action Discovery: The Underutilized Legal Remedy | New York Law Journal Page 2 of 6
Consider this fact pattern. A homeowner returns from work to find his front door
broken down, and muddy footprints tracked throughout his house. Does the
homeowner have a cause of action for civil trespass? Perhaps yes if the intruder was
a mischievous neighbor, but perhaps not if the intruder was a fire fighter trying to
track down a gas leak. With pre-action disclosure the petitioner knows that events
occurred that could be actionable, but has not identified a party from whom to seek
damages.
Statute of Limitations
Thinking back to the dictionary definition of a cause of action, where a defendant has
not yet been identified to sue, has the cause of action yet started to accrue? As a
general matter, the statute of limitations on an underlying cause of action is not
tolled because the plaintiff needs the court’s assistance identifying the defendant or
otherwise framing the complaint. Byramain v. Stevenson, 278 A.D.2d 619 (3d Dept.
2000); Application of McQuillan, 233 A.D.2d 186 (1st Dept. 1996); Holmes v. City of Trending Stories
New York, 132 A.D.3d 952 (2d Dept. 2015). In Barillaro v. City of New York, the judge 1 Microsoft Names First EU
Data Protection Officer Unde
granting pre-action disclosure expressly found that “this order shall not act as an GDPR
instrument to extend any applicable statute of limitations for commencing a (/newyorklawjournal/2018/03
names-first-eu-data-
lawsuit.” 53 Misc.3d 307 (Bronx 2016). protection-officer-under-gdp
Where the statute of limitations of the underlying action is a concern, plaintiffs may CORPORATE COUNSEL
(/CORPCOUNSEL/)
be able to use a pre-action disclosure motion in conjunction with naming a “John
Doe” defendant to avoid becoming time-barred. Procedurally, such a litigant would 2 Texas Attorney Files $100
Million Lawsuit Against Critic
need to demonstrate due diligence under CPLR §1024 and petition for a good cause Ethics Grievant
extension of time to serve under CPLR §306-b. Bumpus v. New York City Transit (/texaslawyer/2018/04/02/te
attorney-files-100-million-
Auth., 66 A.D.3d 26 (2d Dept. 2009). lawsuit-against-critic-who-
called-him-a-nazi/)
Meeting the Burden TEXAS LAWYER (/TEXASLAWYER/)
consider the evidence presented in the light most favorable to the petitioner, and
4 McDermott Touts $100M Ha
give the petitioner the benefit of every favorable inference that can be reasonably as Raid on DLA Piper Grows
(/americanlawyer/2018/03/3
drawn. McCummings v. New York City Transit Auth., 81 N.Y.2d 923 (1993).
touts-100m-haul-as-raid-on-
dla-piper-grows/)
Pre-action disclosure cannot be used to build the facts that constitute a cause of
THE AMERICAN LAWYER
action, nor be used as a fishing expedition. Liberty Imports v. Bourguet, 146 A.D.2d (/AMERICANLAWYER/)
535 (1st Dept. 1989). This limitation advances the principle that mere suspicion may
5 Pardon Her French:
not be used to burden, annoy or intrude on an innocent party. But when there is an Sotomayor Voices Frustratio
adequate showing that wrongdoing has occurred, the potential adverse impact on With Her Colleagues
(/nationallawjournal/2018/04
https://www.law.com/newyorklawjournal/2018/04/02/pre-action-discovery-the-underutilize... 4/3/2018
Pre-Action Discovery: The Underutilized Legal Remedy | New York Law Journal Page 3 of 6
the affected party becomes a secondary consideration to the primary goal of her-french-sotomayor-voices
frustration-with-her-
bringing all relevant facts to light. Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & colleagues/)
Co., 58 A.D.2d 629 (2d Dept. 1977). NATIONAL LAW JOURNAL
(/NATIONALLAWJOURNAL/)
While a pre-action disclosure petition can seek information material and necessary
to frame the complaint (Wien & Malkin v. Wichman, 255 A.D.2d 244 (1st Dept. 1998)),
case law is clear that when a plaintiff can identify the defendant, the likelihood of
success under CPLR 3102(c) drops. Verdon v. New York City Transit Authority, 92
A.D.2d 465 (1st Dept. 1983); Ryan v. Marsh & McLennan Intern., 70 A.D.2d 567 (1st
Dept. 1979). (https://1.next.westlaw.com/Link/Document/FullText?
findType=Y&serNum=1979141310&pubNum=0000602&originatingDoc=N391722D0474411DF91ADA1C02366454D&ref
28sc.UserEnteredCitation%29&transitionType=NotesOfDecisionItem)Pre-action
disclosure petitioners looking for help framing a complaint must do the (almost)
impossible task of demonstrating the existence of a cause of action, and identifying
the parties to the dispute, while still justifying a request for help substantiating
specific elements of a claim.
What is common among the cited cases is the existence of a set of facts that
comprise an actionable offense. Each plaintiff has a clear right to hold another
person accountable for resulting damages, and pre-action disclosure is needed to
enable the plaintiff to identify and seek recovery from the party responsible for the
alleged wrongdoing.
https://www.law.com/newyorklawjournal/2018/04/02/pre-action-discovery-the-underutilize... 4/3/2018
Pre-Action Discovery: The Underutilized Legal Remedy | New York Law Journal Page 4 of 6
CPLR 3102(c) does not itself disclose the procedural mechanism to obtain pre-action
disclosure. That said, these actions are generally commenced and heard by filing a
special proceeding in accordance with Article 4 of the CPLR. Requests for pre-
litigation disclosure are made by petition and order to show cause, filed in the court
that has subject matter jurisdiction over the future lawsuit, and served in the same
manner as a summons and complaint to secure jurisdiction.
Conclusion
Every lawyer would like each referral to arrive with an identified plaintiff, a
compelling set of facts that evidence wrongdoing and damages, and a known
defendant. Sadly, lawyers do not always get what they want. When that less than
perfect case lands on one’s desk, remember CPLR 2103(c) and pre-action disclosure.
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