Matter of Seviroli
Annotate this CaseDecided on March 16, 2005
Surrogate's Court, Nassau County
In the Matter the Estate of Joseph Seviroli, Deceased.
322635
John B. Riordan, J.
This is an application by the executrix for a protective order pursuant to CPLR 3103(a). More specifically, she seeks a confidentiality order with respect to information, testimony, materials and documents that may be elicited in this proceeding concerning the decedent's companies, which are operating entities. These companies are Seviroli Foods, Inc., Joseph Seviroli, Inc. and JS Commercial Realty Corp. More particularly she seeks an order that all such discovery information be deemed confidential unless otherwise ordered by this court. Furthermore, she seeks an order that such confidential information may only be made available to certain designated persons and that such recipients be barred from otherwise disclosing such confidential information to any other person. The designated persons are all interested parties in this proceeding [except Maria Seviroli], counsel for all interested parties and their staff and personnel, the guardian ad litem, the independent professionals retained by the parties, and the court and its staff.
The guardian ad litem for the infant residuary beneficiary, John Joseph Seviroli, objects to the proposed confidentiality order. He argues that there has been no showing that the circumstances in this accounting in which the value of a closely held business is in question are unusual, and that he has a duty to conduct an unfettered investigation in order to protect his ward's interest.
Counsel for Maria Seviroli joins in the guardian ad litem's opposition and opposes so much of the motion which seeks to specifically exclude her, among all the parties, from receipt of this discovery information. The executrix replies that Maria Seviroli only has status in this accounting proceeding as the guardian of the property of her infant son and since the guardian ad litem will be protecting the infant's interest, the barring of Maria Seviroli from this confidential information will not harm the infant.
A confidentiality order may be entered where a party demonstrates a legitimate concern for exposure of trade secrets (Hodgson, Russ, et. al. v. Isolatek Int'l. Corp., 300 AD2d 1047 [2002]; Camenos v. F. W. Woolworth Corp., 233 AD2d 212 [1996]; Finch, Pruyn & Company, Inc. v. Niagara Paper Company, 228 AD2d 834 [1996]; Jackson v. Dow Chemical Company, Inc., 214 AD2d 827 [1995]). Case law establishes that a two-fold analysis is necessary for the issuance of a confidentality order (Bristol, Litynski, Wojcik, P. C. v. Town of Queensbury, 166 AD2d 772, 773 [1990]). In the first instance, the movant is required to make the initial showing necessary to support an assertion that compelling discovery of certain materials would reveal trade secrets (Bristol, Litynski, Wojcik, P. C. v. Town of Queensbury, 166 AD2d 772, 773 [1990]; [*2]see also, Linderman v. Penn Building Co., 289 AD2d 77 [2001]; Blum v. New York Stock Exchange, Inc., 263 AD2d 522 [1999]). This is because orders of confidentiality which restrict use of documents which contain trade secrets are required to be specific and should be limited to trade or business secrets (Bristol, et. al. v. Town of Queensbury, 166 AD2d 772 [1990]). Then after the movant has supported its assertion that it would be required to reveal trade secrets, the burden shifts to the party seeking disclosure to show that the information sought is indispensable
to support its case and could not be acquired in any other way (Curtis v. Complete Foam Insulation Corp., 116 AD2d 907 [1986]).
The statement of a moving party's attorney made upon information and belief that a document contains trade secrets is legally insufficient to establish such fact (Bristol, et. al. v. Town of Queensbury, 166 AD2d at 773 [1990]; Rooney v. Hunter, 26 AD2d 891 [1966]). An affidavit from a person knowledgeable about the business which contains non-conclusory assertions giving rise to a genuine concern that the company may lose some competitive advantage as a result of discovery of specific documents related to secret business procedures and information, is required (Linderman v. Penn Building Co., 289 AD2d 77 [2001]; Jackson v. Dow Chem. Co., 214 AD2d 827, 828 [1995]). For example in Finch, Pruyn & Conmpany, Inc. v. Niagara Paper Company (228 AD2d 834 at 837, 838 [1996]), the paper company's vice president and secretary gave an affidavit wherein he stated "the paper industry is intensely competitive, with paper manufacturers vying for market share. Precisely who a manufacturer sells to and what products are being sold, as well as the pricing thereof, is information which has great competitive significance. A sales history potentially provides a road map to competitors to make inroads on a given company's market position. . . Disclosure of such information is of particular concern because of [the company's] relatively narrow range of products and the risks of larger competitors with broader lines pressuring paper merchants or tying product sales." This affidavit was found by the Appellate Division as sufficient to meet the movant's burden of showing the disclosure of the demanded material would reveal trade secrets.
In the instant matter the movant has not made a sufficient showing of the necessity for a confidentiality order. The application is supported only by an attorney's affirmation based upon information and belief which is legally insufficient as a matter of law. The fact that a confidentiality order was previously entered upon the consent of all the parties in other proceedings in this case during settlement discussions is not dispositive or germane to this motion.
Finally, the application fails to set forth grounds to exclude Maria Seviroli individually as a person interested in this estate [SCPA 103[39]) from access to discoverable material protected by a confidentiality order.
The application of the executrix is denied at this time with leave to renew upon a proper showing.
The foregoing is the decision and order of the court.
Dated: March 16, 2005
John B. Riordan [*3]
Judge of the
Surrogate's Court
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