142 A.D.2d 293 | N.Y. App. Div. | 1988
OPINION OF THE COURT
These three actions are for personal injuries and wrongful death arising out of a propane gas explosion, allegedly caused by a defective hot water heater control valve made by defendant Emerson Electric Company — White Rodgers Division (hereinafter defendant). Plaintiffs have based their action in strict products liability for defective design and manufacture, negligent design and manufacture and negligent effectuation of a product recall program. At a pretrial deposition of defendant through one of its employees, it was disclosed that the valve in question was the subject of reports, correspondence and conferences between defendant and the Federal Consumer Product Safety Commission (hereinafter the CPSC), as the agency administering the Consumer Product Safety Act (15 USC § 2051 et seq.) (hereinafter the Act). Ultimately, a settlement was reached between the CPSC and defendant under which defendant was to replace the suspect control valve with an improved device and issue a recall notice to purchasers and users of heaters containing the valve. Thereafter, defendant retained the consulting firm of Heiden, Pittaway Associates, Inc. (hereinafter Heiden) to evaluate the success of its recall program.
Plaintiffs sought disclosure of various documents and records in defendant’s possession including the contents of defendant’s CPSC file containing the reports and correspondence exchanged between defendant and the CPSC, minutes of defendant’s meeting with CPSC staff and the Heiden report on the efficacy of defendant’s recall program. When defendant resisted, plaintiffs moved for an order compelling disclosure and defendant cross-moved for a protective order on the ground, inter alia, that the CPSC-related materials sought and the Heiden report were privileged and, hence, not subject to disclosure. Supreme Court rejected defendant’s claim of privilege and granted plaintiffs’ motion to compel. The court, however, granted a protective order requiring plaintiffs to keep trade secrets, if any, in the disclosed documents confidential. This appeal by defendant followed.
Defendant’s first contention is that the CPSC-related documents and records sought are statutorily privileged under the
We disagree. Insofar as the order compelling discovery covers information defendant was mandated to report to the CPSC, the nondisclosure of which is covered by section 6 (b) (5) of the Act, that paragraph is expressly made inapplicable to disclosure "in the course of or concerning a judicial proceeding” (15 USC § 2055 [b] [5]). Therefore, the disclosure of such information in a personal injury action such as this is not barred by any statutory privilege (see, Roberts v Carrier Corp., 107 FRD 678, 682-683). As to the other materials which the CPSC agreed in its litigation with defendant not to disclose, in our view the order compelling defendant to submit to discovery in this private action does not conflict with any policy of the Act. By its terms, section 6 (b) only applies to public
Although defendant has not pressed the point on appeal, we have also reviewed the extent to which the provisions of section 6 (a) of the Act (15 USC § 2055 [a]) may have application to the discovery sought here. The disclosure prohibited by section 6 (a) of the Act (see, 15 USC § 2055 [a] [2]) is of trade secret or privileged or confidential commercial or financial information protected by the Federal Trade Secrets Act (18 USC § 1905) or exempted from disclosure under the Federal Freedom of Information Act (5 USC § 552 [b] [4]). Federal court decisions indicate that a person, in invoking those statutory protections from disclosure of trade secrets or other confidential business information, has the burden of showing by specific factual or evidentiary materials that substantial competitive injury would likely result from disclosure (Sharyland Water Supply Corp. v Block, 755 F2d 397, 399; 9 to 5 Org. for Women Off. Workers v Board of Governors of Fed. Resene Sys., 721 F2d 1, 9; Public Citizen Health Research Group v Food & Drug Admin., 704 F2d 1280, 1287; Bristol-Myers Co. v Federal Trade Commn., 424 F2d 935, 938). Defendant’s bare, conclusory allegations of competitive injury are clearly insufficient to afford it statutory protection from disclosure under section 6 (a) of the Act.
In any event, since plaintiffs’ actions are clearly governed by State and not Federal substantive law, State law would also determine the issue of privilege (see, Fed Rules Evid, rule 501). With the rarest of exceptions, and then only where there has been a strong showing that the harm to the public interest from disclosure outweighs the interest of the litigant seeking disclosure (Cirale v 80 Pine St. Corp., 35 NY2d
Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur.
Order modified, on the law, with costs to plaintiffs, by extending the protective order to public disclosure of any information in the disclosed documents except at trial, and, as so modified, affirmed.