Summary
recognizing that "observations made for the stated purpose of arriving at a settlement agreement, and expressly not for litigation . . . should likewise generally be protected by the same public policy of encouraging attempts at settlement"
Summary of this case from Vringo, Inc. v. ZTE Corp.Opinion
January 26, 1987
Appeal from the Supreme Court, Westchester County (Gagliardi, J.).
Ordered that the appellant's notice of appeal is treated as an application for leave to appeal, said application is referred to Justice Eiber and leave to appeal is granted by Justice Eiber (see, CPLR 5701 [c]); and it is further,
Ordered that, upon appeal by permission, the order is affirmed, with costs.
As the parties to this litigation have repeatedly come before this court with appeals from particular discovery rulings in this action, we take this opportunity to note that no appeal as of right lies from an order on an application to review objections raised at an examination before trial (see, Rockwood Natl. Corp. v. Peat, Marwick, Mitchell Co., 59 A.D.2d 573; Roberts v Modica, 102 A.D.2d 886; Hughson v. St. Francis Hosp., 93 A.D.2d 491, 495). However, in light of the prior appeals brought by other parties to this action, we elect to treat the appellant's notice of appeal as an application for leave to appeal pursuant to CPLR 5701 (c), and hereby grant permission to appeal pursuant to that statute.
The question on appeal is whether the information CCWM sought from Delaval's manager of engineering, Gerald Trussell, during his examination before trial, was privileged matter pursuant to CPLR 3101 (b) and thus protected from disclosure.
While the burden of showing the appropriate immunity is on the party asserting it (see, Koump v. Smith, 25 N.Y.2d 287, 294), Delaval satisfied that burden with the submission, in camera, of a letter agreement between the county and it. That confidential agreement provided, in part, that for purposes of settlement, the county would permit inspection by Delaval's representatives of allegedly malfunctioning engines, and would permit those representatives to speak with county representatives during that visit, but that no statements made or information obtained thereby would be used for litigation.
It is well settled that if discussions are had between parties pursuant to an agreement that those discussions are off the record, "then no discovery with respect to those discussions may be had" (Paine, Webber, Jackson Curtis v. Alanthus Corp., 82 A.D.2d 877). Therefore, to the extent that the information sought by CCWM was the content of discussions had during the plant visit, discovery was clearly barred.
Admissions of fact explicitly or implicitly made "without prejudice" during settlement negotiations are protected from discovery pursuant to the public policy of encouraging and facilitating settlement (see, White v. Old Dominion S.S. Co., 102 N.Y. 661, 662). Actions taken and observations made for the stated purpose of arriving at a settlement agreement, and expressly not for litigation, which actions would not have been accomplished except in a mutual attempt to reach a settlement, should likewise generally be protected by the same public policy of encouraging attempts at settlement.
Moreover, CCWM is entitled to conduct its own tests and make its own observations of the engines, and under normal circumstances is not necessarily entitled to discovery regarding another party's tests and observations. Neither the fact that Delaval's test was conducted at a different time, nor that Delaval conducted its tests with the cooperation of the county when CCWM was unable to obtain such cooperation indicates that CCWM will be prejudiced by the lack of disclosure. The record contains no indication that CCWM would be unable to obtain any necessary or relevant information from its own tests and observations.
Finally, if indeed Delaval institutes further design modifications in its engines, of course those modifications are discoverable (see, Cover v. Cohen, 61 N.Y.2d 261, 270). Bracken, J.P., Lawrence, Eiber and Spatt, JJ., concur.