Response Personnel, Inc. v Aschenbrenner

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Response Personnel, Inc. v Aschenbrenner 2010 NY Slip Op 07487 [77 AD3d 518] October 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

Response Personnel, Inc., Appellant,
Erik Aschenbrenner et al., Respondents.

—[*1] A. Bernard Frechtman, New York (Harvey L. Woll of counsel), for appellant.

Kaplan Belsky Ross Bartell, L.L.P., Garden City (Lewis A. Bartell of counsel), for respondents.

Resettled order, Supreme Court, New York County (Eileen Bransten, J.), entered January 6, 2010, which, to the extent appealed from, denied plaintiff's motion for a protective order denying defendants' request for the production of tax returns and other documents and directed plaintiff to produce, at its own expense, the requested discovery in the form of electronic documents, unanimously modified, on the law, to delete the direction to plaintiff to fund the discovery at its own expense, and otherwise affirmed, without costs.

The court properly denied plaintiff's motion for a protective order, since plaintiff failed to show that there was anything unreasonable or improper about defendants' demands for its tax returns (see Pyfrom v Tishman Constr. Co. of N.Y., 270 AD2d 24 [2000]; Gitlin v Chirinkin, 71 AD3d 728 [2010]).

Under these circumstances, directing plaintiff to produce documents in electronic form may be an appropriate response to defendants' argument that they have insufficient office space in which to review voluminous papers, but requiring plaintiff to bear the cost of the production imposes an undue burden on it, since, generally, the cost of production is borne by the party requesting the production, and the cost of creating electronic documents here would not have been inconsequential (see Waltzer v Tradescape & Co., L.L.C., 31 AD3d 302, 304 [2006]). Concur—Sweeny, J.P., Freedman, Richter, Manzanet-Daniels and RomÁn, JJ.

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