Motion for Protective Order in New York

Background

“The court may at any time of its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device.” (Civ. Prac. Law & Rules, § 3103(a); Jones v. Maples, 257 A.D.2d 53, 56 [1st Dept. 1999].) A protective order is designed “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” (Id.)

How to Structure the Motion

New York courts routinely grant protective orders when control of discovery is necessary, such as if

1. the demand for disclosure was palpably improper;
2. the party seeking disclosure failed to show any relevancy of the matter sought to the case at bar;
3. discovery was unnecessary;
4. the disclosure sought amounted to a ‘fishing expedition’; or
5. the disclosure process was being used to harass or unduly burden a party.

(In re Williamson, 261 A.D.2d 147 [1st Dept. 1999]; Strong v. Brookhaven Memorial Hosp. Medical Center, 240 A.D.2d 726 [2nd Dept. 1997]; Bandike Associates, Inc. v. B.B.M. Realty Corp., 55 A.D.2d 999 [3rd Dept. 1977]; Rodolitz v. Beneficial Nat. Life Ins. Co., 41 A.D.2d 707 [1st Dept. 1973]; Jones v. Maples, 257 A.D.2d 53 [1st Dept. 1999].)

A protective order is also warranted when a party uses a disclosure device to seek privileged information. (Mfrs. & Traders Trust Co. v. Servotronics, 132 A.D.2d 392, 396 [4th Dept. 1987].)

The burden of showing that the disclosure sought is improper is upon the party seeking the protective order. (Roman Catholic Church of the Good Shepherd v. Tempco Systems, 202 A.D.2d 257, 258 [1st Dept. 1994].) Where that burden cannot be met, a court “providently exercise[s] its discretion in denying the motion for a protective order.” (Arch Ins. Co. v. Delric Constr. Co., 174 A.D.3d 560, 562 [2nd Dept. 2019].)

The Court’s Decision

The court has statutory authority to supervise discovery in order to avoid abuse of the discovery process. (Astudillo v. St. Francis-Beacon Extended Care Facility, Inc., 12 A.D.3d 469 [2nd Dept. 2004].) “‘Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery… [T]his discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind.” (Cascardo v. Cascardo, 136 A.D.3d 729, 729-30 [2nd Dept. 1993].) When the disclosure process is abused, a protective order eliminating the abuse is necessary and proper. (Astudillo v. St. Francis-Beacon Extended Care Facility, Inc., 12 A.D.3d 469 [2nd Dept. 2004].)

Section 3101(a) broadly defines the scope of disclosure as all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403 [1968].) The words, “material and necessary,” are interpreted literally so as to require disclosure of “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” (Id. at 407.) The test is one of “usefulness and reason.” (Id.)

While the supervision of disclosure is generally left to the sound discretion of the trial court, any such discretion is not unlimited. (Boutique Fabrice, Inc. v. Bergdorf Goodman, Inc., 129 A.D.2d 529 [1st Dept. 1987].)