On October 3, 2023, Justice Knipel of the Kings County Commercial Division issued a decision in Bruce v. Solny, 2023 NY Slip Op. 34070(U), holding that discovery demands that are overbroad should be stricken, not rewritten by the court, explaining:
CPLR 3101(a)(1) provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. The words material and necessary are to be interpreted liberally to require disclosure upon request of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. At the same time, however, the principle of full disclosure’ does not give a party the right to uncontrolled and unfettered disclosure. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.
Where discovery demands are overbroad, lack specificity, or seek irrelevant or confidential information, they are palpably improper and may be stricken. The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one. Thus, the appropriate remedy for an overbroad discovery demand is to vacate the entire demand rather than to prune it. For a protective order to be issued, the party seeking such an order must make a factual showing of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.
Turning first to the Solny Defendants’ motion for a protective order, the Solny Defendants do not articulate adequate grounds in their papers for a protective order with regard to plaintiffs 3118 Demands. However, the Solny Defendants demonstrate that plaintiff’s NDIs are overly broad and would be unduly burdensome to comply with, thus entitling the Solny Defendants to a protective order striking the NDIs as they are presently composed. Many of the demands contain overbroad language seeking all documents from the Solny Defendants. The demands failed to specify the documents sought with reasonable particularity, and without proper tailoring as to time, place and scope, they are palpably improper. Lacking knowledge of the existence of specific documents, etc., proper procedure requires that the party seeking discovery and inspection pursuant to CPLR 3120 initially make use of the deposition and related procedures provided by the CPLR to ascertain the existence of such documents in order that they may be designated with specificity in a CPLR 3120 notice.(Internal quotations and citations omitted).