IN RE: Application of DIRECT MEDIA/DMI (1999)

Order, Supreme Court, New York County (Edward Lehner, J.), entered April 24, 1998, which denied the motion of respondent Adrea Rubin to obtain an open commission for oral examination of three nonparty witnesses, unanimously modified, on the law, the facts and in the exercise of discretion, to grant the motion as to nonparty witness Jeff Pascoe, and otherwise affirmed, without costs.

Orders, same court and Justice, entered on or about April 17, 1998 and June 11, 1998, respectively, which denied the motions of petitioner Direct Media/DMI, Inc., to compel Rubin to produce certain documents and to respond to certain questions propounded during her deposition testimony, unanimously affirmed, without costs.

Although the deposition testimony of Roger Kline, Chief Operating Officer of the Acxiom Corporation, demonstrates that two of the nonparties as to whom open commissions were sought, Charles D. Morgan, Jr. and Jim Womble, played no part in the ultimate agreement between Acxiom and petitioner Direct Media, Kline's testimony as to the involvement of the third nonparty, Jeff Pascoe, by contrast, discloses that Pascoe played an important role in the transaction pursuant to which Acxiom purchased Direct Media, in the course of which he came into possession of financial information crucial to a proper valuation of Direct Media stock, the central issue in this litigation.   Since we conclude, therefore, that Pascoe's testimony is material and necessary to the litigation of the instant matter, Rubin's application for an open commission to obtain that testimony should have been granted (see, Stanzione v. Consumer Bldrs., Inc., 149 A.D.2d 682, 683, 540 N.Y.S.2d 482), and we modify accordingly.

The remaining appealed discovery rulings should be affirmed.   The motion court properly denied Direct Media's motions to compel Rubin to produce documents and answer deposition questions concerning her employment and compensation after she left Direct Media because such information would not be competent to establish industry standards (see, Manley v. New York City Hous. Auth., 190 A.D.2d 600, 593 N.Y.S.2d 808).

MEMORANDUM DECISION.