Summary
holding that the party moving for the production of tax returns must make a strong showing of necessity and desirability
Summary of this case from Altidor v. State-Wide Ins. Co.Opinion
May 21, 1990
Appeal from the Supreme Court, Westchester County (Buell, J.).
Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal from so much of the order as failed to sustain objections made at an examination before trial, the application is referred to Justice Thompson, and leave to appeal is granted by Justice Thompson; and it is further,
Ordered that the order is affirmed insofar as appealed from, with costs.
The facts leading to the instant dispute are set forth in detail in our prior decision in this case on the appeal from the order granting the plaintiff's motion for a preliminary injunction (Walter Karl, Inc. v. Wood, 137 A.D.2d 22). The Supreme Court properly reconsidered its prior determinations denying the defendant's motions for partial protective orders and, upon reconsideration, the defendant's motions were properly granted. Firstly, we note that whether the motion at issue is denominated a motion for leave to reargue or one to renew, it was timely made (see, Weaver v. State of New York, 112 A.D.2d 416; see generally, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:8, at 158). The challenged items in the plaintiff's notice for discovery and inspection on the whole are overly broad and not relevant to the issues in the case to the extent that the information sought infringes upon personal areas unrelated to the breach of an alleged employment agreement (CPLR 3101 [a]; 3103; Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403). Item number 7 of the demand requests all 1987 tax returns prepared by or on behalf of the defendant. The disclosure of tax returns is generally disfavored due to their confidential and private nature (see, e.g., Spancrete Northeast v. Elite Assocs., 148 A.D.2d 694; Muller v. Sorensen, 138 A.D.2d 683). The party seeking to compel the production of tax returns must make a strong showing of necessity and desirability for such disclosure (see, Briton v. Knott Hotels Corp., 111 A.D.2d 62; Penn York Constr. Corp. v. State of New York, 92 A.D.2d 1086). The plaintiff failed to make a showing of necessity for the defendant's tax returns or to show that the information sought was unavailable from other sources.
We find that the Supreme Court also properly granted the protective order with respect to the subpoena duces tecum served on a nonparty witness and denied the plaintiff's motion to compel the nonparty witness to answer certain questions posed at her deposition. Although, generally, the proper procedure is to allow a witness to answer all questions subject to objections which are reserved for trial in accordance with CPLR 3115 (see, Byork v. Carmer, 109 A.D.2d 1087; White v. Martins, 100 A.D.2d 805), the Supreme Court did not act improvidently in declining to direct the nonparty witness to respond. The Supreme Court did not specifically rule on the merits of the objections made at the deposition. However, this court may properly consider the challenged questions and render the rulings (see, White v Martins, supra, at 806; see also, Blitz v. Guardian Life Ins. Co., 99 A.D.2d 404). We find that the questions, for the most part, were not material and relevant to the issues of this case.
Lastly, the subpoena duces tecum sought the customer lists of the competing corporation established by the defendant which was precisely the sort of information which the plaintiff argues constitutes a trade secret. Thus, without ruling on the substance of that argument, we find that a protective order was properly issued with respect to the subpoena duces tecum. The remainder of the challenged items therein were overly broad or not relevant. Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.