JSB Partners LLC v Colabella

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JSB Partners LLC v Colabella 2012 NY Slip Op 32379(U) September 10, 2012 Supreme Court, New York County Docket Number: 600524/10 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 911412012~ [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Justice 6oos~YIl() INDEX NO. MOTION DATE -vMOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to cf af b d 1l were read on thla motion M o r * PAPERS NUMBERED Notice of Motlonl Order to Show Cause Answering Affidavits - - Affidavits - Exhibits ... Exhibits Replying Affidavits Cross-Motion: cz] Yes 4 No Upon the foregolng papers, It is ordered that this motion is bit+ o/&--~ S ~ & W W d PLW,,dAJ, ~ C C L &,LL&.& ~ ~ Dated: Check one: u FINAL DISPOSITION Check if appropriate: N-FINAL DISPOSITION 0 DO NOT POST SUBMIT ORDER/ JUDG. 0 REFERENCE ri SETTLE ORDER/ JUDG. [* 2] SUPREMF, COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 50R - _ _ _ - _ - - - _ _ _ - _ - - - - _ _ - - - - - - - - - -X - - - - J S B PARTNERS LLC, Plaintiff, Index No.: 600524/10 -against ANDREA COLABELLA, STEVEN SHAPIRO and CARDEA G R O U P , INC., SE? Defendants. 1 4 2012 YOR/( I - - - I _ _ - - - _ _ _ - - - _ _ _ - - - - - - - - - - - - - - - - - - - X JOAN A. MADDEN, J. : CO!,,V$?T Defendants move: (1) pursuant to c A E 2 ~ w p 6 &leave to renew and reargue the court s order, dated April 27, 2012, only 1-0 the extent that the order a l - l e g e d l y left certain issues ambiguous and unresolved; (2) pursuant to CPLR 3102 (d), to vacate the compliance conference order of the Special Referee, dated May 16, 2012, to the extent that defendants were directed to provide answers to plaintiff s first and second set of inte1:rogatori.e~ in a manner that i,s inconsistent with the limitations placed upon t h e discovery order; and ( 3 ) , in the alternative, I:o stay discovery pending a determination of an appeal of this order. BACKGROUND The facts of this case have been detailed in the court s prior decisions and will not he reiterated herein. In sum and substance, defendants assert that all further 1 [* 3] discovery should be limited to the 31 clients of plaintiff s that plaintiff has previously identified as being contacted or placed by defendants in violation of the employment agreements between the parties. At d conference with the court on this motion, defendants asserted that it would be unduly burdensome f o r them to attempt to construct a list of all of the persons whom they conFacted or who contacted them during the period of the employment restriction, and that plaintiff s motivation in seekiny such information was to obtain defendant s valuable proprietary information in order to compete with defendants. In the court s earlier decisions, this list was made subject to the confidentiality agreement previously executed by the parties, which, defendants maintain, is insufficient to guarantee them protection from plaintiff misappropriating their proprietary information. In addition, based on a decision of another justice of this court (MSCI I n c . v F i n a n c i a l Eng. Assoc. Inc., 2012 WL 1382438, 2012 NY Slip Op 22110 [Sup Ct, NY County, A p r 20, 2012), defendants contend that it is plaintiff s obligation to identify the specific material that it claims was misappropriated before it can be given access to defendants confidential information. It is defendants position that the court s initial determination granted plaintiff overly broad access to its proprietary files, and that the above-referenced decision 2 [* 4] constitutes new law that the court should follow. It is noted that the court s original order, based on a so-ordered stipulation of the parties, required defendants to turn over the list t-hat is now being questioned for plaintiff s review so that plaintiff could identify the persons that it claims were contacted in derogation of the employment agreement entered into between the parti-es. In opposition to the instant motion, plaintiff contends that, in order to prosecute this action, it n e e d s information regarding all of the persons whom defendants contacted or placed during the period of the restrictive covenant. Plaintiff further states that this information is readily available by computer, and that the court should not continue to revisit the items appearing in the so-ordered stipulation o ¬ March 3, 2011. In reply, defendants statc that plaintiff has failed to address the underlying merits of the motion, and merely chastises defendants attorney, reiterating plaintiff s former position regarding the disclosure of al.1 of the persons contacted or placed by defendants during the period of the restrictive covenant. DISCUSSION CPLR 2221 (d) (2) permits a party to move ¬or leave to reargue a decision of a court upon a showing that t h e court misapprehended the law in rendering its initial decision. 3 [* 5] A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion o f the court a n d may be granted only upon a showing that the court overlooked or misapprehended the facts or law or f o r some reason mistakenly arrived at its earlier decj-sion. Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided o r to present arguments different from those originally asserted [internal citations and quotation marks omitted] ( W i l l . i a r r i P. Pahl Equ.iprnent: C o r p . v K a s s i s , 182 A D 2 d 22, 27 t I , [ Dept 19921 ) . CPLR 2221 (e) states: A mot-ion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the p r i o r motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonab1.e justification for the failure to present such facts on the prior motion. After conference with the parties on this motion, the court concludes that its e a r l i e r order, and the Special Referee s prior order, should be modified so as to provide adequate protection against unnecessary d i s c l o s u r e of defendants proprietary information, while stil.1 al-lowing plaintiff access to the discovery that it needs in order to prosecute this action. C P L R 3101 (a) directs that there s h a l l be full disclosure of all matter material and necessary in the prosecution or defense of an action. In determining when disclosure is appropriate, the test i.s one of usefulness and r e a s o n (Allen v Crowcll--CollierPublishing Company, 21 NY2d 403, 406 [1968]; Ural v Encompass Insurance Company of America, 4 ~ AD3d -, 2012 NY [* 6] Slip Op 5407, 2 0 1 2 NY App LEXIS 5350 [2d Dept 20121), and the trial court is invested with broad discretion to supervise discovery. Fricl v P a p a , 87 AD3d 1108 (2d Dept 2011); see 148 M a g n o l i a , LLC v M e r r i m a c k Mutual Fire I n s u r a n c e C o m p a n y , 6 2 AD3d If the court determines that t h e documents 486 (19 Dept 2009). sought a r c material and necessary to the prosecution or defense of an action, the court. may order disclosure of such documents, subject to a protective o r d e r , pursuant to C P L R 3103. Defendants argue that their client information is proprietary and in the nature of a trade secret. To qualify as a trade secret, the document must be any formula, pattern, device o r compilation of information which is u s e d in one s business, and which gives him [or her] an opportunity to obtain an advantage over competitors who do not know or use it [internal citation omitted] * Ashland Management v J a n i e n , 8 2 NY2d 395, 407 (1993). A trade secret must, first of all, be secret, and whether or not it is a secret is generally a question of factl. S e e G o l d e n Eagle/Satellite A r c h e r y , I n c . v E p l i n g , 291 AD2d 838 (4 Dept 2002). In order for a document to be considered proprietary, the creator of - t h e document must take sufficient precautionary measures to insure that the information remained secret, and the burden in on the creator of the document to establish that such measures were taken. See E d e l m a r l 5 V Starwood C a p i t a l Group, i-,LC, [* 7] 70 A D 3 d 246 (1 Dept 2009). Defendants have made a sufficient showing that their contact list qualifies as secret proprietary information, and plaintiff has not challenged this aspect of the motion. Therefore, the court must now consider how best to protect defendants proprietary materials while still allowing plaintiff access to information that is material and necessary to the prosecution of its case. The court finds defendants argument that compiling such a list would be unduly burdensome to be unpersuasive, and that the requested list can be created wj-thout undue hardship. It is noted that, previously, defendants requested that this information be turned over to plaintiff for attorney s eyes o n l y , but such suggestion was rejected by the court, the court believing that the con ¬idential-iLy agreement already in place between the parties would provide defendants with sufficient protection against unauthori-zed use of the information. After the conference with the parties on this motion, the court is now convinced that greater protection against unauthorized use of the information is required. Therefore, in order to satisfy the needs of both parties, defendants must: compile a list, in alphabetical order, of a1.1 of the persons contacted and/or placed by defendants during the period of the restrictive covenant. Simultaneously, plaintiff [* 8] must compile a list, in alphabetical o r d e r , of all of the persons whom it contacted and/or placed during the period of the individual defendants employment with plaintiff. Defendants are to g i v e their list to their attorney, who w i . 1 1 then give this list to plaintiff s counsel. Plaintiff s counsel will then compare both lists, so as to identify the individuals whose names appear on both compilations. Plaintiff s attorney will then advise defendants counsel of those names, and defendants will thereafter provide a l l of the information requested in p l a i n t i f f s discovery demands for those persons, as qualified by thi,s court s prior o r d e r s . Plaintiff may not see the list prepared by defendants, and defendants may not see the list prepared hy plaintiff. In fashioning disclosure in this manner, b o t h sides interests can be protected. The court declines to grant any other relief requested by defendants in the instant motion. CONCLUSION Rased on the foregoing, i: is hereby t ORDERED that defendants motion is granted to the extent that it is ORDERED that defendants compile a list, for attorney s eyes only, in alphabetical o r d e r , of all of the persons who they conLacted and/or placed by defendants during the period of the restrictive covenant; and it is further 7 [* 9] ORDERED t h a t p l a i n t i f f c o m p i l e a l i s t , f o r a t t o r n e y s e y e s o n l y , i n a l - p h a b e t i c a l o r d e r , o f a l l o f t h e p e r s o n s who i t c o n t a c t e d o r p l a c e d d u r i n g t h e p e r i o d of t h e individual d e f e n d a n t s employment w i t h p l a i n t i - f f ; a n d i t i s f u r t h e r ORDERED t h a t t h e s e l i s t s be c o m p l e t e d w i t h i n 21 d a y s o f the d a t e o f t h i s o r d e r a n d t h a t t h e p a r t i e s are t o g i v e t h e i r I - i s t s t o t h e i r r e s p e c t i v e a t t o r n e y s ; a n d i t is f u r t h e r ORDERED t h a t d e f e n d a n t s counsel give defendants l i s t t o p l a i n t i f f s c o u n s e l i m m e d i a t e l y upon r e c e i p t o f t h e l i s t f r o m d e f e n d a n t s ; a n d it. i s r u r t h e r O R D E R E D t h a t . p l a i n t i f f s c o u n s e l compare b o t h l i s t s , s o a s t o i d e n t i f y t h e i n d i v i d u a l s whose names a p p e a r on b o t h c o m p i l a t i o n s , a n d t h a t , w i t h i n 2 1 d a y s o f receipt o f d e f e n d a n t s l i s t , p l a i n t i f f s a t t o r n e y g i v e d e f e n d a n t s c o u n s e l a list o f t h o s e persons; a n d i t i s f u r t h e r ORDERED t h a t d e f e n d a n t s w i l l t h e r e a f t e r p r o v i d e a l l of t h e i n f o r m a t i o n r e q u e s t e d i n p l a i n t i f f s d i s c o v e r y demands, a s q u a l i f i e d by t h i s c o u r t s p r i o r orders, f o r t h e p e r s o n s so i d e n t i f i e d , w i t h i n 15 days of r e c e i p t of t h e l i s t of such persons ¬Lorn p l a i n t i f f s c o u n s e l ; a n d i t i s f u r t h e r 8 [* 10] ORDERED that t h e remainder o f d e f e n d a n t s ' motion is d e n i e d ; a n d it i s f u r t h e r ORDERED t h a t c o u n s e l are d i r e c t e d t o a p p e a r f o r a conference i n Room 562, 9:oo .<fkS{,r$(L-~~ 6 0 C e n t r e Street, on O c t o b e r 10, 2 0 1 2 , A.M. Dated: J o a n A.'Madden, 1 9 J.S.C. at

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