| SNI/SI Networks LLC v Directv, LLC |
| 2015 NY Slip Op 07941 |
| Decided on October 29, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 29, 2015
Mazzarelli, J.P., Acosta, Saxe, Richter, JJ.
652471/14 16006N 16005
v
DIRECTV, LLC, Defendant-Respondent.
Jenner & Block LLP, New York (Stephen L. Ascher of counsel), for appellant.
Kirkland & Ellis LLP, California (Robyn E. Bladow of the bar of the State of California, admitted pro hac vice, of counsel), for respondent.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 29, 2015, which denied plaintiff's motion for a protective order under CPLR 3103, and directed plaintiff to produce the agreements it has with its other clients, subject to a confidentiality agreement, unanimously affirmed, with costs. Order, same court and Justice, entered May 27, 2015, which, to the extent appealed from, permits defendant's in-house counsel to review the aforesaid agreements, unanimously affirmed, with costs.
The agreements that plaintiff has with its other distributors are "material and necessary" to defendant's defense of antecedent breach (see CPLR 3101[a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 407 [1968]; Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175 [1st Dept 1996]). Defendant demonstrated a factual basis for its defense and that the " discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the [defense]'" (see Abrams v Pecile, 83 AD3d 527, 528 [1st Dept 2011]).
As to plaintiff's request to designate the sought information for "outside counsel eyes only," the parties are not business competitors (see Matter of Bernstein v On-Line Software Intl., 232 AD2d 336, 337 [1st Dept 1996], lv denied 89 NY2d 810 [1997]), and plaintiff's claim that permitting an in-house counsel of defendant to view the information "would visit needless competitive harm on [plaintiff]" is conclusory. To the extent plaintiff is concerned about exposing competitive confidential information belonging to its other distributors, who may be defendant's competitors, this concern is alleviated by the confidentiality order (see Twenty Four Hour Fuel Oil Corp., 226 AD2d at 176).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 29, 2015
CLERK