Barouh Eaton Allen Corp. v. International Business Machines Corp.

• Decision Date: 16 June 1980
• Parties: , 1980-81 Trade Cases P 63,613 BAROUH EATON ALLEN CORP., Respondent, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 33

429 N.Y.S.2d 33

76 A.D.2d 873, 1980-81 Trade Cases P 63,613

BAROUH EATON ALLEN CORP., Respondent, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellant.

Supreme Court, Appellate Division, Second Department.

June 16, 1980.

Cravath, Swaine & Moore, New York City (John R. Hupper, Gregory A. Markel, David E. Massengill, New York City, and Harold E. Akselrad, Brooklyn, of counsel), for appellant.

Moses & Singer, New York City (Bertram Harnett and Paul J. Sinderbrand, New York City, of counsel), for respondent.

Before MARGETT, J. P., and MARTUSCELLO, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action for damages and injunctive and declaratory relief, defendant appeals from an order of the Supreme Court, Kings County, dated March 3, 1980, which (1) granted plaintiff's motion to vacate defendant's interrogatories, without prejudice to service of a new set, if necessary, following the taking of plaintiff's oral deposition, (2) imposed a $1,000 sanction upon defendant's counsel, and (3) precluded further discovery until payment of the sanction.

Order modified by deleting therefrom paragraphs numbered "1" and "2" in their entirety and substituting therefor the following: "Plaintiff's motion is granted to the extent that defendant's interrogatories are vacated in their entirety, without prejudice to the defendant's service of a new and proper set of interrogatories, if so desired, limited to evidence material and necessary to the defense of the action. Upon the completion of the interrogatories and a review of plaintiff's answers thereto, defendant's counsel, if it is deemed necessary, may notice the oral deposition of plaintiff, limited to material and necessary information not adequately supplied through the interrogatories." As so modified, order affirmed, without costs or disbursements.

Plaintiff and defendant are direct competitors in the manufacture and distribution of typewriter ribbons, ribbon cartridges and correction tapes for use on office typewriters, including those manufactured by the defendant. In 1974 plaintiff brought an antitrust action against defendant in Federal District Court. This action was settled by an agreement between the parties, of which the following clause is relevant to this appeal:

"Finally, as to the interfaces ('interfaces') between IBM typewriters currently in production and each of their presently marketed ribbon cartridges and their correction material spindles, there are annexed as Exhibit 7, ribbon cartridge and correction material spindle drawings for such interfaces. Should any change(s) be made in the future in the interfaces of typewriters then in production, IBM upon written request from Eaton Allen, will properly furnish to Eaton Allen comparable drawings and dimensions."

Plaintiff brought the instant action seeking damages and injunctive and declaratory relief for defendant's alleged failure to provide, in advance, interface specifications in accordance with the above-mentioned clause. Defendant served plaintiff with an extensive set of interrogatories, encompassing 32 pages, with 24 enumerated questions and a multitude of subparts, together with a set of detailed instructions. Thereafter, but prior to the response date for answering the interrogatories, defendant noticed the oral deposition of plaintiff to be held 25 days after the answers to the interrogatories were due.

Rather than answer the interrogatories, plaintiff moved for a protective order vacating the interrogatories in their entirety, without prejudice to service of a proper set, if appropriate, after the completion of oral depositions. Special Term granted plaintiff's motion and, sua sponte, imposed a $1,000 monetary sanction upon defendant's counsel to be paid personally to the attorneys for the plaintiff. Defendant appeals from this order.

Special Term was well within its discretion in vacating the interrogatories in their entirety pursuant to its broad power to regulate discovery to prevent abuse (see CPLR 3103, subd. (a); 3133; Kay v. Shopwell, Inc., 63 A.D.2d 694, 404 N.Y.S.2d 888; Katz v. Posner, 23 A.D.2d 774, 258 N.Y.S.2d 508). The interrogatories at bar are patently burdensome, oppressive and improper and in such a case they should be vacated rather than pruned. (See Martino v. Mid-Island Hosp., 73 A.D.2d 592, 422 N.Y.S.2d 129; Forest Bay Homes v. Kosinski, 65 A.D.2d 589, 409 N.Y.S.2d 254.) Additionally, the noticing of an oral deposition prior to reviewing the answers interposed to the interrogatories and without a determination of the necessity for further disclosure, verges on an abuse of the judicial system (cf. Katz v. Posner, supra ). When the disclosure process is used to harass or unduly burden a party, a protective order eliminating that abuse is necessary and proper (see CPLR 3103, subd. (a); Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3103:1, 3A Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3103.05; cf. Commissioners of State Ins. Fund v. News World Communications, App.Div., 425 N.Y.S.2d 595, 597).

It was, however, an improvident exercise of discretion for Special Term...