New York’s unique approach to evidentiary procedure – and specifically, its rules governing admissions by a party opponent’s agent – have frustrated litigators for years. Recent changes to New York’s rules on civil procedure, however, have brought the state’s approach to hearsay more in line with the standard set by the Federal Rules of Evidence. These changes could significantly impact future litigation, especially disputes centered on workplace conduct.

Rule 801(d)(2)(D) of the Federal Rules of Evidence exempts statements made by a party opponent’s employee or agent from the rule barring hearsay, so long as these statements were made within the scope of that employment or agency. Such statements are also admissible in many states, whose rules largely mirror the standard set by the Federal Rules of Evidence.

For years, however, New York has been an outlier, both in its approach to evidence rules generally and specifically in its approach to hearsay. The rules governing agency hearsay were far narrower than its federal counterpart, allowing only statements from agents who had explicit permission to speak – requiring, for example, such authority to be present in a job description or otherwise be inferred from job responsibilities that were typical of senior management. In contrast, no such authorization requirement is present in the federal rules. A statement made by an agent of a party opponent is admissible so long as the statement is within the scope of that person’s...

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