In what circumstances can a witness' testimony be preserved before the commencement of a civil trial when the witness suffers from a terminal illness?

(c) Before action commenced. 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. The court may appoint a referee to take testimony.

Although the scheme of CPLR 3106 contemplated the existence of an action before taking a deposition, the statute [CPLR 3102(c)] does provide that "before an action is commenced, disclosure to aid in bringing an action, to preserve information ... may be obtained, but only by court order." Although "the usual purpose for examining before commencement of the action is to preserve the testimony of a material witness ... whose evidence is likely to be lost by his death or departure from the jurisdiction" [see Weinstein-Korn-Miller, N.Y.Civ.Prac. 3102.10], the statute clearly, by its language, anticipates the preservation of more than testimony, the draftsman having been careful to refer to the preservation of "information." The vehicle object is no less "information" than is the testimony of a witness and under certain circumstances may be more relevant and determinative.

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The law permits the utilization of disclosure devices to locate a chattel in an effort to utilize the provisional remedy of seizure of a chattel [see N.Y.Prac., David D. Siegel, section 339, p. 415].

There shall be "full disclosure of all evidence material and necessary in the prosecution or defense of an action" (CPLR 3101[a]; see, Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 376, 575 N.Y.S.2d 809, 581 N.E.2d 1055) and the court has wide discretion in determining what is material and necessary (see, Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430). Pre-action disclosure is available by court order for the purpose of aiding in the bringing of an action and to preserve information (see, CPLR 3102[c]). Here, where Richard Stanco, now deceased, was in extremis at the time of the commencement of the instant proceeding to preserve his testimony, there was an adequate demonstration of the need to preserve his testimony.

Disclosure before an action is commenced may be obtained by order to (i) aid in bringing an action; (ii) preserve information; or (iii) aid in arbitration. CPLR 3102(c). When seeking discovery to aid in bringing an action, a prospective plaintiff must present facts that fairly indicate a cause of action exists. Without such a showing, disclosure for that purpose is not available. See Matter of Manufacturers & Traders Trust Co. v. Bonner, 84 A.D.2d 678, 446 N.Y.S.2d 631; accord Matter of Stump v. 209 East 56th St. Corp., 212 A.D.2d 410, 622 N.Y.S.2d 517; Emmrich v. Technology for Information Management, Inc., 91 A.D.2d 777, 457 N.Y.S.2d 1017; Matter of Janosik, 71 A.D.2d 1058, 420 N.Y.S.2d 815.

However, this is an application to preserve testimony, not to aid in bringing an action. In such a case, there is no requirement that the existence of a cause of action be demonstrated with the certainty required when the application is intended to assist in framing a complaint or in identifying defendants. Furthermore, the person proposed to be deposed is not a potential defendant or witness who ought not to be inconvenienced in the absence of some showing of merit. See Matter of Stewart v. New York City Transit Auth., 112 A.D.2d 939, 492 N.Y.S.2d 459. Rather, it is Mr. Davis, a proposed claimant who is allegedly close to death, whose testimony is to be taken to the end that his rights be protected. See Matter of Ausnit (Malaxa), 191 Misc. 390, 78 N.Y.S.2d 401, mod 273 App.Div. 958, 78 N.Y.S.2d 924 (ordering the deposition of a proposed defendant about to depart the country to protect the rights of his adversary).

The papers submitted on this application establish not only the gravity of Mr. Davis' condition, a fact not disputed by respondent ¹, but that a year ago when seen at University of Rochester Medical Center on a referral from Attica, he had a mass on the upper lobe of the left lung. Two months later the Medical Center reported to Attica that it had still not received chest X-rays and CT scans done earlier at another institution; a further CT

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scan was to be done and a follow-up was to be scheduled within two to three weeks to determine if a biopsy or bronchoscopy should be done. However, Mr. Davis was "lost to follow-up" and was not seen at the Medical Center for almost four months, at which point his condition had worsened. These facts do not, of course, fully establish a cause of action although they strongly suggest possible failures to promptly diagnose and properly respond to a deteriorating lung condition resulting from the failure to provide earlier x-ray and CT scan reports for comparison purposes and to return Mr. Davis to the Medical Center for further examination. Thus, this application is not based upon mere suspicion (see Matter of Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., 58 A.D.2d 629, 395 N.Y.S.2d 684); and the relief sought is obviously necessary. Compare Gorgoni v. Rapson, 166 A.D.2d 901, 560 N.Y.S.2d 562.

Balancing the need to preserve Mr. Davis' testimony against the inconvenience and expense to the State if this application is granted, the scales tip heavily in his favor. Therefore, the application is granted. ² In view of Mr. Davis' condition, his videotaped deposition shall take place at Attica no later than July 29, 1998. The Superintendent of Attica and the Department of Correctional Services shall facilitate arrangements for the deposition. As Mr. Ballow has not yet been retained, the deposition shall not commence until he confers with Mr. Davis and then states on the record that he has been retained. The Court retains jurisdiction of the proceeding for rescheduling purposes if the State can establish that Mr. Davis' death is not imminent.