JPMorgan Chase Funding Inc. v. Cohan

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered March 25, 2015, which, among other things, denied plaintiff’s motion for a protective order, unanimously modified, on the law, to grant the motion solely as to any tax returns produced, and otherwise affirmed, without costs.

Plaintiff, a subsidiary of defendant’s former employer, failed to show that, other than the tax returns, the requested documents, regarding a partnership and investments made by the partnership, contain trade secrets (see Mann v Cooper Tire Co., 33 AD3d 24 , 30-31 [1st Dept 2006], lv denied 7 NY3d 718 [2006]). Plaintiffs counsel’s affirmation contains conclusory assertions (see Linderman v Pennsylvania Bldg. Co., 289 AD2d 77 , 78 [1st Dept 2001]), and does not discuss the extent to which the approximately 6,000 potentially responsive documents contain information known outside of the partnership, the current value of that information to both the partnership and its competitors, the manner in which the information was obtained and kept, and the ease or difficulty of obtaining the information from nonpublic funds or other investors (see Ashland Mgt. v Janien, 82 NY2d 395 , 407 [1993]). Although the initial showing required by a party seeking a protective order against discovery of documents containing trade secrets is “minimal” (Jackson v Dow Chem. Co., 214 AD2d 827 , 828 [3d Dept 1995]), it still must be non-conclusory and give rise to a “concern that [plaintiffs] competitors may gain some competitive advantage as a result of discovery of secret business procedures and information” (Linderman, 289 AD2d at 78 [internal quotations omitted; bracketed material altered]). Plaintiff failed to make the requisite showing. We also reject plaintiff’s claim that defendant is otherwise contractually bound to keep the documents confidential.

Nonetheless, we find that the demanded tax returns are entitled to confidentiality at this point in the litigation. We have consistently treated discovery requests for tax returns with heightened scrutiny, recognizing that they are confidential by their nature (see e.g. Kodsi v Gee, 54 AD3d 613 , 614 [1st Dept 2008]; Rosenfeld v Kaplan, 245 AD2d 176 [1st Dept