On May 19, 2022, the First Department issued a decision in Matter of GTV Media Group, Inc. v. Confidential Global Investigations, 2022 NY Slip Op. 03318, holding that pre-action discovery may not be used to determine whether a cause of action exists, explaining:
Supreme Court providently denied the petition and dismissed the proceeding. Pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists. Rather, the discovery is available where a petitioner demonstrates that it has a meritorious cause of action and the information sought is material and necessary to the actionable wrong. Here, petitioner’s identified claims rest largely on speculation that one of its employees, officers, directors, or attorneys must have leaked its financial information, and that its trade secrets may have been or could be compromised. Respondent obtained the information from an outside source and a public blog. Notably the information had previously been provided to the SEC. There is no factual basis for concluding that the leak must have been internal. Since the petition does not allege facts concerning how the allegedly wrongful conduct occurred and lacks any description of a potential defendant, petitioner seeks merely to ascertain whether it may have a meritorious cause of action against possible wrongdoers. This is an inappropriate use of CPLR 3102.
(Internal quotations and citations omitted).