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NY Court Quashes Subpoena for Claims Adjuster in Auto Accident Case

October 14, 2016

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<p style="text-align: justify;"><a href="https://scholar.google.com/scholar_case?case=14977421525424753373&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">Lizardi v. Bogale</a> was a typical New York auto accident case, but an interesting issue arose during discovery.  As often is the case. party depositions revealed significant differences as to how the accident occurred.  During the plaintiff’s deposition, she testified that she spoke over the phone to a GEICO claims representative on the date of the automobile accident and plaintiff made a motion to compel the production of the audiotape or written transcript of that call, and the parties stipulated that GEICO would produce the audiotape/transcript or an affidavit from the GEICO adjuster stating that the requested documents no longer existed. The defendant provided an affidavit from the GEICO adjuster that there was no audiotape or written transcript of plaintiff’s telephone call.  Plaintiff then sought to depose the GEICO adjuster for her non-party testimony and defendant moved to quash the subpoena.</p>
<p style="text-align: justify;">The court recognized that discovery is a very broad tool, and that the term “material and necessary” is mean to be liberally applied, in order to provide plaintiffs with the tools to prosecute their case. However, the court held that discovery is not meant to be unlimited and that the testimony of the GEICO insurance adjuster was not “material and necessary” as her testimony would only be cumulative of the information previously provided by both parties and was intended to be used solely to impeach defendant’s credibility or bolster plaintiff’s credibility.</p>
<p style="text-align: justify;">The court further opined that the purpose of liability insurance is the defense and settlement of claims and that virtually everything an adjuster does is in contemplation and preparation of litigation or settlement. As such, plaintiff would have to demonstrate a substantial need for the testimony of the insurance adjuster and would be unable to obtain the information of the adjuster without establishing undue hardship. Accordingly, the court held that the adjuster’s testimony was not material and necessary to the prosecution of the matter and the adjuster’s testimony would not provide any new information, and the court granted the defendant’s motion to quash the subpoena.</p>
<p style="text-align: justify;">Thanks to Geoffrey Bleau for his contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono </a>for more information.</p>

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