August 2, 2013
AUGUSTUS BUTERA PHOTOGRAPHY, INC. Plaintiff,
MCA CREATIVE SERVICES, INC., a/k/a MARGE CASEY & ASSOCIATES, INC. Defendants MCA CREATIVE SERVICES, INC., Third-Party Plaintiff,
AUGUSTUS BUTERA, an individual Third-Party Defendant Index No. 651984/2011
RECEIVED NYSCEF: 08/06/2013, Submission Date: 5/29/13
For Plaintiff/Third-Party Defendant: Edward C. Greenberg, LLC
For Defendant/Third Party Plaintiff: Cowan, DeBaets, Abrahams & Sheppard LLP
DECISION AND ORDER
SALIANN SCARPULLA, J.
Papers considered in review of this motion for protective order and cross-motion to compel (motion seq. no. 003):
Notice of Motion/Affirm, of Counsel/Exhibits.........................................1
Memo, of Law in Opp. to Motion/Affirm, of Counsel/Exhibits..............2
Notice of Cross Motion/Memo of Law...................................................4
Memo, of Law in Opp. to Cross Motion..................................................5
Reply in Supp. of Cross-Motion............................................................6
This action involves a dispute between professional photographer Augustus Butera ("Mr. Butera") and the artist representation agency MCA Creative Services, Inc. a/k/a Marge Casey & Associates, Inc. ("MCA"). Defendant MCA moves: (a) for a protective order modifying the Court's November 14, 2012 order; (b) to compel Augustus Butera Photography, Inc. and Mr. Butera to enter into a confidentiality agreement; and (c) for an extension of discovery deadlines.
Plaintiff Augustus Butera Photography, Inc. ("Plaintiff) and third-party defendant Mr. Butera cross move for an order: (a) compelling MCA to complete document production pursuant to the November 14, 2012 order within twenty days; (b) compelling MCA to produce Patrick Casey for a deposition within forty days; (c) conditionally precluding MCA from entering any documents into evidence or testifying at trial and/or dismissing MCA's claims against Plaintiff and Mr. Butera, if MCA fails to complete its document production or to produce Patrick Casey; and (d) awarding them attorney's fees.
In the complaint, Plaintiff alleges that it entered into a business relationship with Marge Casey, an experienced agent, in 1998. Plaintiff claims that it was "induced to be represented by MCA due solely to the presence of Marge Casey." Plaintiff alleges that a representation agreement may exist between Mr. Butera and MCA that was entered into on August 31, 1998 ("the representation agreement"). Plaintiff further alleges that in or around 1998, Patrick Casey, son of Marge Casey, became MCA's majority or sole shareholder.
Plaintiff further alleges that a chaotic atmosphere existed at MCA, such that Marge Casey left MCA in or around 2011 and formed a new business known as "New Wave Reps" that is now in direct competition with MCA. On June 1, 2011, Plaintiff terminated its business relationship with MCA.
Plaintiff asserts six causes of action against MCA for conversion, accounting, breach of fiduciary duty, unjust enrichment, negligence, and a declaratory judgment concerning the rights and obligations of the parties under the representation agreement.Plaintiff alleges that MCA failed to pay for services rendered by Mr. Butera and for licenses that it granted to Mr. Butera's work, and that MCA failed to properly account for photography work and licensing fees owed to Plaintiff or Mr. Butera.
MCA asserts a counterclaim against Plaintiff for tortious interference with business relations. MCA also commenced a third-party action against Mr. Butera for breach of the representation agreement based on Mr. Butera's failure to pay a severance fee upon his termination of the relationship and his failure to pay commissions to MCA. MCA also asserted a claim against Mr. Butera for tortious interference with business relations.
On November 14, 2012, 1 so-ordered a stipulation between the parties, in which they agreed to produce documents Created during the time period that a business relationship existed between the parties. The so-ordered stipulation stated that "[d]ocuments created during the period of the parties or one or more of them (approx 13 years) are subject to production."
In the current motion, MCA states that it has already produced thousands of documents in compliance with the November 14 order. However, MCA now seeks a protective order limiting the scope of discovery. MCA argues that Plaintiffs requests for documents covering the period of the parties' thirteen year business relationship is overbroad and burdensome. MCA argues that discovery should be limited according to Plaintiffs claims of unpaid sums for the period May to November 2011, and to the six- year statute of limitations period for Plaintiffs breach of contract claim. MCA also argues that Plaintiff has not alleged a fraud claim to support its request for documents.
In opposition, Plaintiff claims that its document requests are material and necessary to determining the validity and terms of the representation agreement, and as to "a pattern of behavior of deceit and fraud as it relates to the claims for breaches of the fiduciary duty of loyalty." Plaintiff also argues that its document requests are necessary because there may be instances in which MCA collected a licensing fee or failed to reveal the final amounts charged, of which Plaintiff and Mr. Butera are unaware.
CPLR §3101(a) requires full disclosure of all evidence material and necessary to the prosecution or defense of an action. "Material and necessary" has been interpreted to mean any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. Allen v. Crow ell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968); Friel v. Papa, 87 A.D.3d 1108, 1110 (2d Dep't 2011). Unlimited disclosure, however, is not permitted. Spohn-Konen v Town of Brookhaven, 74 A.D.3d 1049, 1049 (2d Dep't 2010); Ackerman v. Landes, 125 A.D.2d 620 (2d Dep't 1986). A trial court is vested with broad discretion regarding discovery. 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 487 (1st Dep't 2009).
At the outset, I note here that MCA's motion seeks a modification of a so-ordered stipulation that was previously agreed to and signed by both parties. Notwithstanding the foregoing, I grant MCA's motion for a protective order to the extent that Plaintiffs First Request for Production of Documents No. 6, 7, 8, 12 - 15, and 18-21 are limited in scope to the six-year period prior to the end of the business relationship in June 2011, with the exception that MCA must produce any responsive documents created during the thirteen-year period of the business relationship that concern whether the parties entered into the representation agreement, and whether the representation agreement provided for a severance commission.
In this action, Plaintiff seeks a declaratory judgment concerning whether a valid representation agreement exists, and it is therefore entitled to documents created during the business relationship that are relevant and material to that issue. However, Plaintiffs document requests concerning whether MCA failed to pay for Mr. Butera's photography work, including licensing fees, must be limited in scope to amounts that Plaintiff can recover under the applicable statute of limitations period.
As to the issue of confidentiality, I grant defendant MCA's motion to designate documents as "attorneys' eyes only" for the following specified categories of documents: (a) all internal accounting documents generated by MCA; (b) internal communications by and amongst employees of MCA; (c) documents regarding MCA's finances; and (d) invoices, bills, statements, or correspondence between MCA and third parties, to the extent that these documents only implicate third parties and not plaintiff. I find that these documents may be designated "attorneys' eyes only" in light of MCA's claim that Plaintiff now works for a direct competitor of MCA.
I also grant MCA's request for an extension of time to complete discovery. I direct MCA to complete document production within forty-five days, and to produce Patrick Casey for a deposition within sixty days of the date of this order.
2. Plaintiff and Butera's Cross-Motion
In accordance with my decision above, I grant Plaintiff and Mr. Butera's cross-motion to the extent that MCA is directed to complete document production within forty-five days, and to produce Patrick Casey for a deposition within sixty days of this order. I otherwise deny Plaintiff and Mr. Butera's cross-motion for a conditional preclusion order, dismissal of MCA's claims, and attorney's fees. There is no evidence that MCA filed this motion in bad faith simply to delay discovery in this action.
In accordance with the foregoing, it is
ORDERED that defendant MCA Creative Services, Inc. a/k/a Marge Casey & Associates, Inc.'s motion is granted to the extent that: (1) Plaintiffs First Request for Production of Documents No. 6, 7, 8, 12 - 15, and 18-21 are limited in scope to the six-year period prior to the end of the business relationship in June 2011 as described above; (2) I grant MCA's request to designate confidential documents as "attorneys' eyes only" for the above specified categories of documents; and (3) I grant MCA's request for an extension of time to complete document production within forty-five days and to produce Patrick Casey for a deposition within sixty days of the date of this order, and otherwise denied; and it is further
ORDERED that plaintiff Augustus Butera Photography, Inc. and third-party defendant Augustus Butera's motion is granted to the extent that MCA is directed to complete document production within forty-five days and to produce Patrick Casey for a deposition within sixty days of the date of this order, and otherwise denied; and it is further
ORDERED that the Court's prior decision dated November 14, 2012 is vacated and substituted with this order; and it is further
ORDERED that counsel are directed to appear for a status conference in Part 19, 60 Centre Street, Room 335, on October 9, 2013, at 2:15 P.M.
This constitutes the Decision and Order of the Court.