Gallo v. Mayer

20 A.D.2d 542, 245 N.Y.S.2d 160, 1963 N.Y. App. Div. LEXIS 2808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1963
• Status: Published

Opinion

In an action to recover damages for breach of an alleged agreement of joint venture, the defendant Mayer appeals from an order of the Supreme Court, Nassau County, dated May 2, 1963, resettling an order of said court dated March 26, 1963, which denied his motion to vacate a subpoena duces tecum issued on plaintiff’s behalf, addressed to said defendant’s attorneys and requiring them to produce certain of their records on his pretrial examination by the plaintiff. Resettled order of May 2, 1963 modified as follows: (1) by granting defendant Mayer’s motion to vacate the subpoena to the extent of: (a) striking out the first item of the subpoena; (b) striking out the eighth item of the subpoena; and (e) excising from all the remaining items of the subpoena the provision which requires the production of the attorneys’ diary entries and docket record; and (2) by amending the second decretal paragraph of the resettled order so as to add a provision to the effect that the said attorneys’ diary entries and docket records or other similar confidential matter need not be produced pursuant to the subpoena at the pretrial examination. As so modified, the resettled order is affirmed, without costs. The pretrial examination shall proceed on 10 days’ written notice or at such other time and place as the parties may mutually agree by written stipulation; and the books and records specified in such subpoena and in the resettled order, as here modified, shall be produced upon such examination. The eighth item of the subpoena is couched in such vague and general language as to render impossible any compliance with its terms. The attorneys’ diary entries and docket records, including those prepared by attorney Deitch, which are the subject of the first item in the subpoena and which are also specified in the other items and indirectly embraced in the order’s second decretal paragraph, are confidential communications which cannot properly be made the subject of pretrial examination. Beldock, P. J., Ughetta, Kleinfeld, Rabin and Hopkins, JJ., concur.