Bill Text: NY S07043 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to when an adverse party is entitled to production of a writing, object, or other material a witness has used to refresh the witness' recollection.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-01-03 - REFERRED TO JUDICIARY [S07043 Detail]

Download: New_York-2023-S07043-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7043

                               2023-2024 Regular Sessions

                    IN SENATE

                                      May 17, 2023
                                       ___________

        Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
          when printed to be committed to the Committee on Judiciary

        AN ACT to amend the civil practice law and rules, in relation to the use
          of writings and objects to refresh recollection

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. The civil practice law and rules is amended by adding a new
     2  section 4550 to read as follows:
     3    §  4550.  Writings and objects used to refresh recollection. (a) While
     4  testifying.    Except  as  otherwise  provided  by   law   in   criminal
     5  proceedings, if a witness while testifying at a trial, hearing, or depo-
     6  sition  uses  a  writing,  an  object,  or other material to refresh the
     7  witness' recollection for the purpose of testifying at the trial,  hear-
     8  ing, or deposition, an adverse party is entitled to inspect the writing,
     9  object,  or  other  material  at  that time. The disclosure shall not be
    10  barred by any common law or statutory privilege, work product protection
    11  under subdivision (c) of section thirty-one hundred one of this chapter,
    12  or trial preparation protection under subparagraph  two  of  subdivision
    13  (d) of section thirty-one hundred one of this chapter otherwise applica-
    14  ble to the writing, object, or other material.
    15    (b)    Before testifying. If before testifying at a trial, hearing, or
    16  deposition a witness has used a writing, an object, or other material to
    17  refresh the witness' recollection,  and  the  court  in  its  discretion
    18  determines  the  interests  of  justice  so require, an adverse party is
    19  entitled to production of the writing, object, or other material at  the
    20  trial, hearing, or deposition where the witness is testifying or as soon
    21  afterward  as  practicable. Among the factors to be considered in deter-
    22  mining whether production is to be ordered are  the  importance  of  the
    23  witness'  testimony, the extent to which the witness' testimony overlaps
    24  with the contents of the writing, object, or other  material  used,  the
    25  amount  of time elapsed between the use of the writing, object, or other

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11466-01-3
        S. 7043                             2

     1  material to refresh recollection and the  witness'  testimony,  and  the
     2  need  of  the party seeking production to test the witness' credibility.
     3  The privileged or protected nature of the material sought to be produced
     4  shall  not  bar  production,  but  the court may consider any applicable
     5  privilege or protection as a factor in that determination.
     6    (c) Terms of production and use.  When the adverse party  is  entitled
     7  to  production  of the writing, object, or other material under subdivi-
     8  sion (a) or (b) of this section, the adverse party may use  the  disclo-
     9  sure  to cross-examine the witness about it and, only for the purpose of
    10  impeaching the witness, may introduce in evidence portions  that  relate
    11  to  the witness' testimony. If the party resisting production claims the
    12  writing, object, or other material  includes  matter  unrelated  to  the
    13  witness'  testimony,  the  court  shall  examine the writing, object, or
    14  other material in camera and excise any unrelated matter. If  the  writ-
    15  ing, object, or other material is not produced as ordered, the court may
    16  issue any further order the interests of justice require.
    17    § 2. This act shall take effect immediately.