Opinion
July 8, 1970
Appeal from an order of the Supreme Court at Special Term, entered July 9, 1969 in Broome County, vacating defendant's notice to take plaintiff's deposition upon oral examination and to produce documents. Respondent corporation, engaged in the distribution of natural gas, commenced this action against appellant, an electric and gas corporation, for alleged violations of subdivisions 2 and 3 of section 65 Pub. Serv. of the Public Service Law and section 340 Gen. Bus. of the General Business Law. The complaint charged appellant with offering illegal rates for electrical lighting to municipal customers using electricity rather than gas as a source of space heating. Pursuant to CPLR 3107 and 3111 appellant served upon respondent a notice of examination as to "all evidence material and necessary in the defense of this action". The notice also required respondent to produce upon examination items in its possession, custody or control consisting of 10 paragraphs of business, marketing and advertising records, including all contracts, memoranda, correspondence, records, books; payments, allowances, gifts and inducements to promote the use of gas; rebates and discounts on file with the New York Public Service Commission; loans, mortgages and credit arrangements related to the furnishing of gas equipment; advertising and allowances to users of gas; payments to trade organizations; service policies and advertisements; and material pertaining to the allegations in respondent's complaint of the loss of prospective municipal customers. Upon respondent's motion for a protective order, Special Term vacated appellant's notice. CPLR 3101 mandates that "There shall be full disclosure of all evidence material and necessary" to the conduct of an action, absent the applicability of certain specified exceptions. Here, however, appellant's notice clearly exceeded the liberal bounds of this provision. The documents demanded would encompass volumes of material neither relevant to the litigation limited to municipal contracts nor useful in sharpening the issues or reducing delay ( Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403). Appellant's demand for documents entailed an unnecessary and unreasonable annoyance and prejudice to respondent and was thus a legitimate object of the court's protective order. (CPLR 3103, par. [a].) Determinations concerning the proper scope of disclosure lie within the discretion of the court. This discretion, however, is not unlimited and ordinarily should not be used to foreclose a party from access to information material to its case, absent dangers of abuse. (See Allen v. Crowell-Collier Pub. Co., supra, pp. 406-408.) Respondent alleges no danger of abuse other than that relating to production of the documents. Although a party should not be penalized for not knowing with any degree of accuracy what papers are in the hands of his opponent, it would seem that a determination of what documents may be used on the examination before trial should await the course of the examination. The proper procedure to be followed would be to keep the documents unavailable to the appellant until the oral examination turns toward them and they can be identified with some degree of particularity. There exists no basis for precluding appellant from taking depositions upon oral questions without the production of the records requested, as was its right under CPLR 3101 and 3102. Accordingly, the order should be modified so as to permit the taking of respondent's depositions as to its practices relating to municipal markets. Order modified, on the law, to the extent of permitting the appellant to take respondent's deposition upon oral examination, and, as so modified, affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Greenblott, J.