Pre-Action Discovery: The Underutilized Legal Remedy | New York Law Journal Page 1 of 6

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Pre-Action Discovery: The Underutilized Leg

Remedy
Potential plaintiffs, armed only with a set of facts that evidence wrongdoing and damages, can petition under CPLR 3
(c) for judicial assistance in framing complaints and identifying defendants.
By Nancy B. Levitin and Jeffrey R. Neuman | April 02, 2018 at 02:30 PM

è (http://www.almreprints.com)
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.

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Pre-Action Discovery: The Underutilized Legal Remedy | New York Law Journal Page 2 of 6

A fundamental question that comes to mind in the context of pre-action disclosure is

whether having an identified defendant is essential to having a cause of action.
According to Collins Dictionary of Law, the phrase “cause of action” is understood to
mean the right to bring an action. Under this definition, there must be a person in
existence who can assert the claim and also a person who can lawfully be sued on
the claim. The implication is that without a person to sue for damages, a litigant does
not have a cause of action. Pre-action discovery turns that implication on its head.

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/)

As noted, New York allows pre-action discovery to be used to aid in bringing an

3 Quinn Emanuel Partner
action. CPLR §3102(c). Generally, to avail oneself of pre-action discovery, the Suffers From Depression and
He Wants Everyone to Know
petitioner must set forth a prima facie case for a meritorious cause of action. Ero v.
(/newyorklawjournal/2018/03
Graystone Materials, 252 A.D.2d 812, 814 (3d Dept. 1998); however, some courts emanuel-partner-suffers-from
depression-and-he-wants-
may set a lower threshold requiring only proof that “some” cause of action exists.
everyone-to-know/)
Konig v. WordPress.com, 112 A.D.3d 936 (2d Dept. 2013). In determining whether NEW YORK LAW JOURNAL
petitioner has met the burden of proving a cause of action exists, the court will (/NEWYORKLAWJOURNAL/)

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).
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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

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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.

Pre-action discovery is more likely to succeed when used to identify a defendant

than to frame a complaint. Examples of such successes in different substantive
practice areas include the following:

Pre-action disclosure granted to identify a product manufacturer. Camara v.

Skanska, 150 A.D.3d 548 (1 Dept. 2017); Hughes v. Witco—Chemprene Div., 175
A.D.2d 486 (3d Dept. 1991).

Pre-action disclosure granted to determine the identity of the recipient of

funds. Banco de Concepcion v. Manfra, Tordella & Brooke, 70 A.D.2d 840 (1st
Dept. 1979).

Pre-action disclosure granted to identify individuals who distributed

photograph of petitioner’s unclothed body. Leff v. Our Lady of Mercy
Academy, 150 A.D.3d 1239 (2d Dept. 2017).

Pre-action disclosure granted to identify the individual or entity that

purchased a sculpture allegedly stolen from petitioner’s home. Alexander v.
Spanierman Gallery, 33 A.D.3d 411 (1st Dept. 2006).

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.

In addition to being able to demonstrate the meritorious cause of action, the

petitioner for pre-action disclosure must also show that the information sought is
“material and necessary to the actionable wrong” following the standard applied to
all Article 31 disclosure mechanisms. Holtzman v. Manhattan and Bronx Surface
Transit Operating Authority, 271 A.D.2d 346 (1st Dept. 2000); Kapon v. Koch, 23
N.Y.3d 32 (2014). So long as the petitioner is guided by the material and necessary
standard, CPLR §3102(c) does not limit the scope of disclosure prescribed by CPLR
§3101. Barillaro v. City of New York, 53 Misc.3d 307 (N.Y. 2016). While the disclosure
devices are generally outlined in CPLR 3102(a), this is not an exhaustive list of
remedies so long as the information sought through the disclosure device is material
and necessary.

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.

When seeking pre-action disclosure, practitioners should pay particular attention to

subject matter jurisdiction. Pre-action petitions should be filed in the venue that
would adjudicate a case involving the underlying facts.

Petitions for pre-action disclosure should expressly state petitioner’s intent to

commence the future action in the same court that is being asked to hear the pre-
action disclosure application. See Perez v. NY Presbyterian Hosp., 11 Misc.3d 722
(Civ. Ct. N.Y. Cnty. 2006) (denying petitioner’s pre-action petition for the failure to
allege a future intent to proceed in the Civil Court, which has limited jurisdiction); see
also Estate of Matter of Wallace, 239 A.D.2d 14 (3d Dept. 1998) (rejecting the special
proceeding filed in Surrogate’s Court when the cause of action alleged was wrongful
death, which belonged in a different court).

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.

Nancy B. Levitin is a partner at Abrams, Fensterman, Fensterman, Eisman, Formato,

Ferrara, Wolf & Carone, where she serves as director of the health care
reimbursement and recovery practice. Jeffrey R. Neuman is an associate at the firm.

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