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Top 10 citations: Opposing discovery in state court

Mark J. Moretti


The burden of proving that the method of discovery sought will result in disclosure of relevant information, or that it is reasonably calculated to lead to the discovery of information bearing on the defense of the claims, lies with the party seeking disclosure, Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 541 N.Y.S.2d 30 (2d Dept. 1989); Herbst v. Bruhn, 106 A.D.2d 546 (2d Dept. 1984).

2. “Plaintiff is entitled only to disclosure of those records which are relevant to the lawsuit and may not use the records obtained as a basis for untrammeled review of the defendant’s business transactions,” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Sts. v. Solow, 54 A.D.2d 830 (1st. Dept. 1976), see also Rufer v. New York State Teachers Assn., 42 A.D.2d 1040 (4th Dept. 1973). If demands for discovery are “overly broad and vexatious and tend to confuse, rather than sharpen, the central issue,” a motion to compel discovery should be denied, Harrison v. Bayley Seton Hosp., 219 A.D.2d  584 (2d Dept. 1995).

3. The requestors use of the words “all documents” is indicative of a lack of CPLR 3120’s requirement of reasonable particularity, Ganin v. Janow, 86 A.D.2d 857 (2d Dept. 1982), see also Slavenburg Corp. v. North Shore Equities, 76 A.D.2d 769 (1st Dept. 1980).

4. Demands which … seek irrelevant information or are otherwise improper must be denied, Andrew Capoccia, PC v. Spiro, 88 A.D.2d 1100, 453 N.Y.S.2d 70 (3rd Dept. 1982); see also Handy v. Geften Realty, 129 A.D.2d 556, 514 N.Y.S.2d 51 (2d Dept. 1987). Although the CPLR mandates its disclosure provisions to be construed liberally, carte blanche discovery demands are not to be honored, Feeley v. Midas Props., 168 A.D.2d 416 (2d Dept. 1990). “Fishing expeditions,” or voluminous demands that go beyond the issues presented by the pleadings, should not be permitted, Latture v. Smith, 304 A.D.2d 534 (2d Dept. 2003); see also Auerbach v. Klein, 30 A.D.3d 451 (2d Dept. 2006); Andrew Capoccia v. Spiro, 88 A.D.2d 1100 (3rd Dept.1982).

5. Discovery requests not sufficiently limited in duration are improper, Torian v. Lewis, 90 A.D.2d 600 (3rd Dept. 1982); Murray Walter, Inc. v. Sarkisian Bros., 107 A.D.2d 173 (3rd Dept. 1985). A party has no obligation to provide discovery where demands are based purely on speculation and conjecture, Slate v. State of New York, 267 A.D.2d 839 (3rd Dept. 1999).

6. A party cannot be compelled to create new documents or other tangible items in order to comply with particular discovery applications, Durham Med.Search v. Physicians Intl. Search, 122 A.D.2d 529 (4th Dept. 1986).

7. When discovery requests have multiple deficiencies, New York courts have sometimes chosen to vacate the demand in its entirety rather than prune it, Carroad v. Regensburg, 17 A.D.2d 734 (1st Dept. 1962); Monzo v. Westchester Rockland Newspapers,106 A.D.2d 492 (2d Dept. 1984). If most but not all of plaintiff’s demands are improper due to vagueness, overbreadth, or because they create an undue burden on the defendant, the offending demands should not be pruned. Rather, the court should vacate all demands, both improper and otherwise, see Latture v. Smith, 304 A.D.2d 534, 536 (2d Dept. 2003); see also Astudillo v. St. Francis-Beacon Extended Care Facility, Inc., 12 A.D.3d 469 (2d Dept. 2004).

8. The trial court is invested with broad discretion to supervise discovery and determine what is material and necessary. The scope of permissible discovery is not unlimited, Feeley v. Midas Props., 168 A.D.2d 416, 417 (2d Dept. 1990); see also Blagrove v Cox, 294 A.D. 2d 526, 742 N.Y.S.2d 865 (2d Dept. 2002). A trial court must first balance the need for discovery against any special burden to be borne by the opposing party before exercising its discretion. The appellate court’s review is limited to the “abuse of discretion” standard only once the trial court has undertaken to balance the interests involved in a discovery request, Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954 (1998).

9. Disclosure is intended to sharpen issues, and should not be permitted where the discovery sought would focus undue attention on collateral matters to the detriment of the main claim, European Am. Bank v. Competition Motors, 186 A.D.2d 784 (2d Dept. 1992).

10. Tax returns are not discoverable absent a strong showing of necessity of those returns in proving a defense to the action, Niagara Falls Urban Renewal Agency v. Friedman, 55 A.D.2d 830 (4th Dept. 1976); Smith v. Providence Washington Ins. Co., 51 A.D.2d 1074, 1075 (3rd Dept. 1976). Tax returns are not discoverable unless they contain relevant information that cannot be obtained from any alternative source, Zimmer v. Cathedral School of St. Mary & St. Paul, 204 A.D.2d 538 (2d Dept. 1994).

Mark J. Moretti is a partner with the Rochester office of Phillips Lytle LLP. He focuses his practice in business and tort litigation and is a former chairman of the New York State Bar Association’s Trial Lawyers Section. He can be reached at mmoretti@phillipslytle.com.

One comment

  1. I am self employed, and was injured by a third party vendor…I am an independent contractor Truck Driver. I was doing dedicated work for three years,and can prove all of my gross income.. I am pursuing legal action for personal injury and lost Wages…Does the insurance company have a right to my tax returns, if I can provide proof of income through my 1099’s I received from the company that I am leased onto?

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