Opinion
June 29, 1967
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously modified as follows: Items: 4, 5 and 6: Modified by deleting any limitation and motion denied. 7: Affirmed as to tax returns and reversed as to information concerning machines and, as so modified, affirmed. The order providing for the disclosure of tax returns is affirmed upon the condition that if, after discovery, the defendants still feel the tax returns are necessary for the defense of the action and can so demonstrate to the court, this affirmance will be without prejudice to the right to reassert these claims. 8: Order reversed. The demand is so vague and general and lacking in specificity that it would be difficult for the plaintiff to prepare for the discovery and present everything and everyone required. The discovery is denied without prejudice to the defendants' right to reapply when they are able to indicate specifically what documents they seek. It is denied as to tax returns without prejudice, upon the same conditions stated as to item 7. 9, 10, 11, 12: Reversed and motion denied. 13: Reversed. This item is similar to No. 8 in lacking specificity. The reversal is upon the same condition set forth above relating to item 8. 16: Affirmed except as to tax returns. As to these, we affirm upon the same condition set forth in item 7. 17: Affirmed, without prejudice to the defendants' right to reapply when they are able to indicate specifically what documents they seek. 18: Reversed. This item lacks specificity. The reversal is upon the same condition set forth above relating to item 8. As so modified the order is affirmed, without costs. Memorandum: The claim of the necessity of protection because of trade secrecy is not established in the record. If there is any such trade secrecy, the protection would not survive the proof that will be required at the trial as to damages, whether these amounts be sought because of damage or injury to the machine mountings or to the disassembling and reassembling of the machines because of the damaged mountings. Furthermore, any proof of interference with operation of any kind would probably destroy any claim of trade secrecy. A full examination of the paper machines and their operations, in addition to what has already been had, may now be had. As to income tax returns, they may or may not become pertinent and necessary to the defense. If the defendants can establish necessity as the discovery progresses, they may reapply to the court for this permission, and the denial at this time will not harm them. We might observe that some of the examinations and information requested by the defendants, to which the plaintiff strenuously objects, have already been had. The demand relating to claims made by plaintiff against its own insurance carrier is very broad and general. It requests "All correspondence, memoranda and other documents relating to any and all claims made by the plaintiff against its own insurance carriers for loss or damage to structures or machinery". It is difficult to comprehend just what may be contained in the plaintiff's file or the subject and extent of the correspondence, memoranda and other documents. Some may be pertinent; some may not. The divulgence of some may be unnecessary and without benefit to the defendants. This item should be denied without prejudice to defendants to endeavor to ascertain just what in plaintiff's file might be helpful to them and, thereafter, to serve a more specific demand comprehending the pertinent and useful data.