July 15, 2025

Excessive Discovery

By Laura Trachtman

One of the longest and most expensive parts of the litigation process is discovery. For the uninitiated, discovery is the process by which parties “discover” evidence from the other side. This can take a variety of  forms: written, verbal, audiovisual recordings, and inspection of locations.  My aim today, however, is to focus on written discovery, and what you can and can’t ask for.  

The limits of written discovery were helpfully set forth in a recent Second Department case. There, the Court held: 

CPLR 3101 (a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (see Hamed v Alas Realty Corp., 209 AD3d 628, 629 [2022]). “ ’The words, material and necessary, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial’ ” (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548 [2018] [internal quotation marks omitted], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “ ’However, the principle of full disclosure does not give a party the right to uncontrolled and unfettered disclosure, and the trial courts have broad power to regulate discovery to prevent abuse’ ” (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d at 548 [internal quotation marks omitted], quoting Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]). 

Harrington v. New York City Transit Authority, 223 AD3d 787 (2d Dept.2024). 

OK great, but what does that mean?  In short, it means that both sides have to produce anything that is material and necessary in order to either defend or prosecute the case.  

What does material and necessary mean?  Material and necessary means anything concerning the case that will assist in preparation for trial for either side.  To break it down further:  what needs to be established at trial is the injury that is the subject of the lawsuit, the damages stemming from the injury, and the liability for the damages.  However, as with all aspects of the law, this is not unlimited.  

What are the limits?  There is no right to uncontrolled and unfettered disclosure. An excellent example of this is addressed in the Harrington case, above. The plaintiff was directed to evacuate a city bus when the fare box began smoking.  While evacuating, she slipped in a substance inside the bus and fell, sustaining injuries.

During discovery, her attorneys requested information concerning the fare box and its upkeep, which then became the subject of a motion to compel, which was denied by the trial court. On appeal, the Appellate Division affirmed the lower court’s finding, noting that “[h]ere, contrary to the plaintiff’s contention, the condition of the fare box at the front of the bus was not a proximate cause of the plaintiff’s accident, but, rather, merely furnished the occasion for the plaintiff’s exit from the bus and her alleged slip and fall due to a wet substance on the floor of the bus (see Sheehan v City of New York, 40 NY2d 496, 502-503 [1976]; Landsman v Tolo, 194 AD3d 1034, 1035 [2021]). Accordingly, the requested discovery regarding the fare box was not material and necessary to the prosecution of the action, and the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to compel such discovery (see State Farm Mut. Auto. Ins. Co. v RLC Med., P.C., 150 AD3d 1034, 1035 [2017]).” In other words, the fare box, which wasn’t why the plaintiff slipped and fell, had no bearing on the controversy.  

What does this mean in practical terms? It means that while, at trial, the smoking fare box as the reason for the evacuation of the bus is pertinent, it is irrelevant to how the plaintiff was hurt. , the damages incurred as a result of the injury, or whether the MTA is liable for having a wet substance on the floor of the bus.  

This is important because it is a clear example of what is and is not material and necessary for the prosecution and defense of the case:  As it is neither the cause of the injury, the damages incurred as a result of the injury, or the establishment of liability for the injury, it is not discoverable.