Discovery (or, as it is called in New York, “disclosure”) encompasses the various methods of obtaining information in a lawsuit. In New York, discovery includes depositions on oral questions, depositions outside the state on written questions, interrogatories, demands for addresses, discovery and inspection of documents or property, physical and mental examinations of people, and requests for admissions.
Clients sometimes ask this author whether they may obtain discovery, such as by demanding documents or by examining a potential defendant under oath, in order to determine whether the clients have a cause of action. In general, in the state courts of New York, the answer is “no.” However, there is a way in New York to obtain discovery after doing only a minimal amount of work on a case.
In New York state court, pre-lawsuit discovery is governed by N.Y. C.P.L.R. 3102(c). That statutory section states in part: “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.”
Under N.Y. C.P.L.R. 3102(c), discovery “to aid in bringing an action” may not be used to ascertain whether the plaintiff has a cause of action. However, if the plaintiff can satisfy the court that there is a cause of action, the plaintiff may obtain pre-lawsuit discovery to help determine whom the defendants ought to be or the form that the action should take.
As Professor David D. Siegel has noted, if the plaintiff needs discovery to help with the drafting of the complaint, an alternative, efficient method is to begin the lawsuit with a mere notice under N.Y. C.P.L.R. 305(b), and then to demand discovery within the lawsuit.
It should be noted that, in the federal courts, pre-lawsuit discovery is likewise limited to narrowly defined circumstances. In order to take pre-lawsuit depositions under the Federal Rules, a person must, by petition in federal district court, show that he expects to file an action cognizable in federal court that cannot yet be filed, the substance of the proposed depositions and the reasons why they are important, and a risk that the testimony will be lost if not preserved.