Opinion
Submitted April 12, 1999
June 1, 1999
In an action to recover damages for personal injuries, the defendants Stanley Works and Stanley-Bostitch, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gowan, J.), dated July 29, 1998, as (1) denied their motion for a protective order and to compel disclosure of certain records in the possession of the plaintiff's expert and the plaintiff's attorney, and (2) granted that branch of the plaintiff's cross motion which was to strike their answer unless they complied with a prior order of the same court dated January 21, 1998, granting the plaintiff's prior motion to produce, inter alia, all documents requested in the plaintiff's demand for discovery and inspection dated September 10, 1997.
Gallaher Gosseen Faller Kaplan Crowley, Garden City, N Y (Robert A. Faller of counsel), for appellants.
Fisher Seidner, P.C., Babylon, N.Y. (Robert Seidner of counsel), for respondent.
GUY JAMES MANGANO, P.J., WILLIAM D. FRIEDMANN, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is modified by (1) deleting the provision thereof granting that branch of the cross motion which was to strike the appellants' answer unless they complied with so much of the order dated January 21, 1998, as granted that branch of the plaintiff's prior motion which was to produce product test documentation not relating to the operation or function of components of the Stanley-Bostitch N80SB pneumatic stick nailer which allegedly caused the plaintiff's injuries and substituting therefor a provision denying that branch of the cross motion, and (2) deleting the provision thereof denying that branch of the appellants' motion which was to compel disclosure of the documents demanded in item 2 of the appellants' notice to produce dated April 6, 1998, and substituting therefor a provision compelling disclosure of the documents demanded in item 2 to the extent that it requests a copy of any of the appellants' statements that will be introduced at trial against them; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the time for the appellants and the plaintiff to comply with the above discovery demands is extended until 30 days after service upon them of a copy of this decision and order, with notice of entry.
The appellants claim that certain testing protocols, operating procedures, and test information are not discoverable as trade secrets. However, the conclusory employee affidavit submitted by the appellants does not establish that the test documentation sought to be protected is a trade secret ( see, Ashland Mgt. v. Janien, 82 N.Y.2d 395; Sheldon v. Kimberly-Clark Corp., 111 A.D.2d 912). Generally, product safety tests are discoverable ( see, Romain v. Schwartz, 110 A.D.2d 694). Nevertheless, the plaintiff's demand for product test documentation not relating to the operation or function of components of the Stanley-Bostitch N8OSB pneumatic stick nailer which allegedly caused the plaintiff's injuries is immaterial, irrelevant, and/or unduly broad ( see, Schertzer v. Upjohn Co., 42 A.D.2d 790). As a result, the scope of discovery of the appellants' product test documentation has been limited as indicated.
Contrary to the appellants' contentions, production of test documentation prepared by the plaintiff's expert is not required herein ( see, Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 947; Matter of Love Canal Actions, 161 A.D.2d 1169). However, the appellants are entitled to a copy of their statements in the possession of the plaintiff's counsel which will be introduced at trial against them ( see, CPLR 3101 [e]; Sands v. News Am. Publ., 161 A.D.2d 30).