New York Senate Bill S07043 Latest Draft

   
  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.