On July 14, 2023. Justice Reed of the New York County Commercial Division issued a decision in Latin Mkts. Brazil, LLC v. McArdle, 2023 NY Slip Op. 50719(U), holding that a party that stipulated that a category of ESI would not be produced was barred from later seeking to compel its disclosure, explaining:
CPLR 3101(a) provides for the full disclosure of all matter material and necessary in the prosecution or defense of an action. Under this standard, disclosure is required ‘of any facts which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. Under CPLR 3124, a party moving to compel discovery must establish that the discovery it seeks is material and necessary and meets the test of usefulness and reason. Plaintiff submits that these communications are patently relevant to the prosecution of their case and are narrowly tailored to the needs of the case. These communications, plaintiff argues, will likely reveal which clients Mr. Mallon and Mr. McArdle contacted and attempted to solicit, as well as any other discussions of improperly removing and using Markets Group confidential materials. Plaintiff contends that the three-month scope of its demand is limited in nature and does not constitute a fishing expedition.
Defendants oppose the motion to compel, arguing that the terms of the ESI stipulation prohibit disclosure. Defendants submit that plaintiff’s counsel stipulated to not request text messages in the ESI stipulation, and argue that this demand is untimely given that it comes more than a year following execution of the ESI stipulation. Per defendants, the stipulation, like any contract, requires the court to adhere to its terms absent fraud, collusion, mistake, or accident. Defendants also characterize plaintiff’s request as overly expansive and speculative.
Defendants are correct. Plaintiffs was represented by counsel and consented to a voluntary waiver of discoverable materials when it stipulated that “the following sources of ESI information do not warrant collection, search, review or production: (a) Voicemail, text messages, personal phones or tablets and instant messages” (NYSCEF doc. no. 203). Plaintiff has made no showings of fraud, duress, coercion, or mistake warranting this court overturning the stipulation. Accordingly, plaintiff’s motion to compel is denied.
(Internal quotations and citations omitted).