Response Pers., Inc. v. Aschenbrenner
Response Pers., Inc. v. Aschenbrenner
77 A.D.3d 518 (N.Y. App. Div. 2010)
October 21, 2010
Form of Production
Proportionality
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Summary
The Supreme Court of New York County denied plaintiff's motion for a protective order and directed plaintiff to produce the requested discovery in the form of electronic documents. The court modified the order to delete the direction to plaintiff to fund the production at its own expense, since the cost of production is generally borne by the party requesting the production.
RESPONSE PERSONNEL, INC., Appellant,
v.
ERIK ASCHENBRENNER et al., Respondents
3419, 106509/08
Supreme Court, Appellate Division, First Department, New York
October 21, 2010

Counsel

A. Bernard Frechtman, New York (Harvey L. Woll of counsel), for appellant.
Kaplan Belsky Ross Bartell, L.L.P., Garden City (Lewis A. Bartell of counsel), for respondents.
Panel members: Sweeny Jr., John W., Freedman, Helen E., Richter, Rosalyn H., Manzanet-Daniels, Sallie

Opinion

*518 Resettled order, Supreme Court, New York County (Eileen Bransten, J.), entered January 6, 2010, which, to the extent appealed *519 from, denied plaintiff's motion for a protective order denying defendants' request for the production of tax returns and other documents and directed plaintiff to produce, at its own expense, the requested discovery in the form of electronic documents, unanimously modified, on the law, to delete the direction to plaintiff to fund the discovery at its own expense, and otherwise affirmed, without costs.
The court properly denied plaintiff's motion for a protective order, since plaintiff failed to show that there was anything unreasonable or improper about defendants' demands for its tax returns (see Pyfrom v. Tishman Constr. Co. of N.Y., 270 A.D.2d 24, 704 N.Y.S.2d 810 [2000]; Gitlin v. Chirinkin, 71 A.D.3d 728, 895 N.Y.S.2d 724 [2010] ).
Under these circumstances, directing plaintiff to produce documents in electronic form may be an appropriate response to defendants' argument that they have insufficient office space in which to review voluminous papers, but requiring plaintiff to bear the cost of the production imposes an undue burden on it, since, generally, **434 the cost of production is borne by the party requesting the production, and the cost of creating electronic documents here would not have been inconsequential (see Waltzer v. Tradescape & Co., L.L.C., 31 A.D.3d 302, 304, 819 N.Y.S.2d 38 [2006] ).