Your deposition: what the other side is actually allowed to ask a business owner.

At a New York deposition, opposing counsel may ask about matter that is material and necessary to the claims or defenses, construed broadly, and you must answer. Three grounds excuse an answer: privilege or confidentiality, a limitation set in a court order, or a plainly improper question that would cause significant prejudice. Everything else goes on the record.

What can the other side actually ask you at your deposition?

New York depositions proceed as examination and cross-examination would in open court, and the scope tracks the statutory disclosure standard: all matter material and necessary to the prosecution or defense of the action. A deponent answers all questions subject to three exceptions, and objections are noted by the officer while the answer is still given.

Law: CPLR 3101(a); CPLR 3113(b), (c); 22 NYCRR 221.1(a), 221.2. Case: Allen v Crowell-Collier Publishing Co., 21 NY2d 403 (1968).

“Material and necessary” is read liberally, to reach facts bearing on the controversy. Liberal is not unlimited. Privilege, materiality, and the pleadings still bound the day.

Because examination proceeds as at trial, a party deposed at the instance of an adverse party may be cross-examined by his or her own attorney, and not only on the examination in chief. Because objections are merely noted, the deposition proceeds subject to them and to the right to apply for a protective order. The court, not the transcript, resolves the fight later.

If the questioning turns into harassment, the remedy is an application for a protective order, and the relief is discretionary. The court may deny, limit, condition or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. That covers customer lists, margins, and personal finances with no bearing on the pleaded claims. Someone has to move.

Law: CPLR 3103(a).

I ask for the document set the other side already has before I ask you what happened, because those documents dictate the questions.

Who does the company have to produce for a deposition?

A deposition notice or subpoena may name a particular officer, director, member or employee of an entity, and the entity must produce that person. The entity keeps one option: it may notify the requesting party, no later than ten days before the scheduled deposition, that a different specified individual will be produced instead.

Law: CPLR 3106(d).

There is a second route, and it is no longer confined to the Commercial Division. A notice or subpoena may name the entity itself and enumerate the matters for examination, described with reasonable particularity. No later than ten days before the deposition the entity must designate one or more officers, directors, members or employees to testify, and state which matters each will cover. Each designee testifies to information known or reasonably available to the entity.

Rules: 22 NYCRR 202.20-d; 22 NYCRR 202.70(g), Rule 11-f.

Being the owner does not automatically make you the witness. Being the only person who knows how the 2021 lease was negotiated effectively does. Cross-designate a controller who cannot answer the enumerated matters and you have added a deposition, not avoided one.

Your people are a separate problem, and the line is not the one owners assume. A current officer, director, member or employee of a party is reached by notice, not subpoena. A former employee is a nonparty who must be subpoenaed, served at least twenty days before the examination unless the court orders otherwise. Since 2014 a nonparty deponent’s own counsel may participate and object in the same manner as counsel for a party, so the older Fourth Department rule barring that is no longer the law.

Law: CPLR 3106(b); CPLR 3113(c), as amended by L 2014, ch 379, effective September 23, 2014, superseding Thompson v Mather, 70 AD3d 1436 (4th Dept 2010), and Sciara v Surgical Assoc. of W.N.Y., P.C., 104 AD3d 1256 (4th Dept 2013).

How long can they keep you in the chair?

Depositions in New York are presumptively limited to seven hours per deponent, and plaintiffs, defendants and third-party defendants are each presumptively limited to ten depositions. The same two numbers govern in the Commercial Division. Both limits yield to a stipulation of the parties, an order of the court, or good cause shown.

Rules: 22 NYCRR 202.20-b; 22 NYCRR 202.70(g), Rule 11-d.

Sequence matters as well. CPLR 3106(a) requires the plaintiff to get leave of court to depose a party before that party’s time to answer has expired. Case law builds a general rule on that text: absent special circumstances, a defendant has priority where notice is served before the time to answer expires. That priority covers party depositions, not former employees. The deposition is also taken continuously and without unreasonable adjournment, unless the court orders otherwise or the witness and the parties present agree. Coming back another day is a negotiation, not a right.

Law: CPLR 3106(a); CPLR 3113(b). Cases: Serio v Rhulen, 29 AD3d 1195 (3d Dept 2006); McGowan v Eastman, 271 NY 195 (1936).

The Commercial Division rules add a warning. Failure to appear at a scheduled deposition, or appearance without proper preparation, is generally viewed there as highly improper and can result in sanctions permitted by statute and court rule.

Rule: 22 NYCRR 202.70 (preamble), citing CPLR 3126 and 22 NYCRR Part 130.

What is your lawyer allowed to do while you are being questioned?

Part 221 of the Uniform Rules narrows counsel’s role at a deposition. Objections must be stated succinctly and framed so as not to suggest an answer. An attorney may not interrupt the deposition to confer with the deponent unless all parties consent or the conference concerns whether the question should not be answered at all.

Rules: 22 NYCRR 221.1(b), 221.3.

The objection filter is deliberately tight. No objections are made except those that would be waived if not interposed under CPLR 3115(b), (c) or (d), plus objections made in compliance with CPLR 3115(e). Everything else is preserved for the judge without a word from your side of the table.

Rules: 22 NYCRR 221.1(a); CPLR 3115.

• Permitted: a succinct objection that preserves a ground which would otherwise be waived.
• Permitted: a direction not to answer on one of the three grounds in section 221.2, or as provided in CPLR 3115, with a clear statement of the basis.
• Permitted: cross-examination of you by your own attorney where your deposition was taken at the instance of an adverse party, not limited to the examination in chief.
• Permitted: objections by a nonparty deponent’s own counsel, in the same manner as counsel for a party.
• Not permitted: an objection framed so as to suggest your answer.
• Not permitted: interrupting to confer with you outside the narrow section 221.3 exception.

Read that list as a witness, not as a lawyer. The hallway coaching you may expect mid-question does not exist.

Your lawyer is a guardrail at a deposition, not a co-pilot. The answers are yours.

Can you refuse to answer a question?

Refusal is permitted on three grounds only: to preserve a privilege or right of confidentiality, to enforce a limitation set forth in a court order, or where the question is plainly improper and would, if answered, cause significant prejudice to any person. Any refusal or direction not to answer needs a clear stated basis.

Rule: 22 NYCRR 221.2.

An attorney may not direct you not to answer except as provided in CPLR 3115 or that section. A refusal does not end the day. If the deponent does not answer, the examining party may complete the remainder of the deposition, and the unanswered question is briefed and decided by the court.

Two answers people confuse with refusal are not refusals. “I do not recall” is an answer, and a truthful one when true. A guess is also an answer, and a permanent one. The rule is answer, or state a basis on the record.

Can you fix your answers afterward with an errata sheet?

CPLR 3116(a) lets a witness correct the transcript. Changes in form or substance are entered at the end of the deposition with the witness’s stated reason for each, and the transcript is then signed before an officer authorized to administer an oath. No changes may be made more than sixty days after submission of the transcript to the witness.

Law: CPLR 3116(a).

I read the transcript against the exhibits before I read it for tone.

The statute’s structure sets the limits of the tool. Corrections sit at the end with your stated reasons attached, and your original answer stays on its original page. An errata sheet adds a second version. It does not delete the first.

• Works well: a misheard word, a garbled number, an obvious transcription error.
• Rarely works: converting a damaging admission into a denial, because both versions travel together.
• Defective: a list of changes with no reason given for each, which the statute requires.
• Too late: any change offered more than sixty days after the transcript was submitted to you.

Note what happens if you ignore the transcript. If you fail to sign and return it within sixty days of submission, it may be used as fully as though you had signed it, and the window to change a word has closed. Doing nothing produces a transcript you cannot correct.

How does your deposition testimony get used at summary judgment?

Deposition testimony is motion evidence, not just trial evidence. CPLR 3117(a) permits any part or all of a deposition, so far as admissible under the rules of evidence, to be used at trial or on the hearing of a motion. Any deposition may be used to contradict or impeach the deponent.

Law: CPLR 3117(a), (a)(1).

The provision that matters most to a business owner is the next one. The testimony of a party, or of an officer, director, member, employee or authorized agent of a party when it was given, may be used for any purpose by a party adversely interested then or when it is offered. “For any purpose” means affirmative proof, not impeachment alone.

Law: CPLR 3117(a)(2).

Two related mechanics carry an exception that matters to you. Taking a deposition does not make that person your own witness, and introducing a deposition for any purpose other than contradicting or impeaching the deponent does make the deponent the witness of the party introducing it. That consequence does not attach to an adverse party’s use of a party’s deposition under paragraph two. The other side can use your testimony affirmatively without adopting you.

Law: CPLR 3117(d).

The consequence lands months later. Moving papers will set your transcript beside anything else you have signed and invite the court to compare them. Expect the argument that the later, friendlier version was manufactured for the motion.

Summary judgment is decided on paper. Your deposition is the paper.

What should you do before your deposition?

Preparation for a New York deposition starts with the documents rather than the story. The exhibits the other side already holds will set the questions, and the notice or subpoena sets the boundaries of the day. Confirm scope, date, hours, format, and who is being produced well before the morning of the examination.

• Read the notice or subpoena line by line. Note whether it names you by identity, description or title, and whether it enumerates matters.
• Calendar the ten-day deadline, counted backward from the scheduled deposition date, to name a substitute or designate the entity’s witnesses.
• Match each enumerated matter to the person who actually knows it, not the person with the best title.
• Calendar the presumptive seven-hour limit and stipulate in writing to start time, breaks, and end time.
• Assemble the named documents: the guaranty, the 2021 lease, the change orders, the email chain. Read them before you rehearse an answer.
• Flag privilege and confidentiality issues in advance and move for a protective order before the questioning, because that relief is discretionary.
• Confirm the officer is authorized to administer oaths and is not counsel or an employee of counsel for a party, a relative of either, or financially interested.
• Sort your people into current and former. Current officers, directors, members and employees of a party come in on notice; former employees are nonparties reached by subpoena on twenty days’ notice.
• When the transcript is submitted to you, calendar sixty days for signing and changes, and read it against the exhibits.

Law: CPLR 3103(a); CPLR 3106(a), (b), (d); CPLR 3113(a), (c); CPLR 3116(a). Rules: 22 NYCRR 202.20-b; 202.20-d; 202.70(g), Rules 11-d and 11-f.

A deposition is not a conversation about whether you are a good businessperson. It is a sworn, transcribed record, presumptively seven hours long, quoted back to a judge on a motion. Prepare it as a document.