Opinion
2014-09-26
CONLEY & SON EXCAVATING CO., LTD., Plaintiff–Respondent, v. The DELTA ALLIANCE, LLC, et al., Defendants, and McDonald's Real Estate Company of Columbia, Maryland, Defendant–Appellant.
Bousquet Holstein PLLC, Syracuse (James L. Sonneborn of Counsel), For Defendant–Appellant. Sheats & Bailey, PLLC, Brewerton (Jason B. Bailey of Counsel), for Plaintiff–Respondent.
Bousquet Holstein PLLC, Syracuse (James L. Sonneborn of Counsel), For Defendant–Appellant. Sheats & Bailey, PLLC, Brewerton (Jason B. Bailey of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and VALENTINO, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking, inter alia, to foreclose on a mechanic's lien arising out of a construction project on property owned by defendant McDonald's Real Estate Company of Columbia, Maryland (MREC). Plaintiff had entered into a subcontract with defendant The Delta Alliance, LLC (Delta), the general contractor on the construction project, to provide building and site demolition in connection with the rebuilding of a McDonald's restaurant. Plaintiff moved to compel MREC to disclose, inter alia, the original contract between Delta and MREC and any amendments thereto. MREC asserted that the requested documents contained confidential, proprietary business information, and cross-moved for a protective order pursuant to CPLR 3103(a). We agree with MREC that Supreme Court abused its discretion in denying the cross motion insofar as it sought to condition disclosure of the documents on plaintiff's execution of a confidentiality agreement ( see Kimmel v. State of New York, 302 A.D.2d 908, 908, 754 N.Y.S.2d 923; see generally Herbenson v. Carrols Corp., 101 A.D.3d 1220, 1221–1222, 955 N.Y.S.2d 678). We therefore modify the order accordingly. “Discoverability of such documents involves a two-fold analysis: the moving party must show that the discovery demand would require it to reveal a trade secret, which then shifts the burden of the responding party to show that the information was indispensable to proving its [case]” (Finch, Pruyn & Co. v. Niagara Paper Co., 228 A.D.2d 834, 837, 643 N.Y.S.2d 773, appeal dismissed88 N.Y.2d 979, 648 N.Y.S.2d 878, 671 N.E.2d 1275). Here, MREC met its burden of establishing that the documents sought by plaintiff contained information “not known by those outside the business, [and that the documents] were kept under lock and key, were the product of substantial effort and expense, and could not be easily acquired or duplicated” (Terwilliger v. Max Co., Ltd., 64 A.D.3d 1232, 1233, 881 N.Y.S.2d 790; see Finch, Pruyn & Co., 228 A.D.2d at 837, 643 N.Y.S.2d 773). We nevertheless conclude that plaintiff established that the documents sought “were indispensable to [its] case and were otherwise unavailable if they could not be obtained from [MREC]” (Terwilliger, 64 A.D.3d at 1233, 881 N.Y.S.2d 790; see Hodgson, Russ, Andrews, Woods & Goodyear v. Isolatek Intl. Corp., 300 A.D.2d 1047, 1048, 752 N.Y.S.2d 472).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the second through fourth ordering paragraphs and granting the cross motion insofar as it sought to condition disclosure upon plaintiff's execution of a confidentiality agreement, and as modified the order is affirmed without costs.