PARTNERS NAPIER INC PLAINTIFF RESPONDENT v. JULIE DEROLLER JENNIFER RAMPE JOCELYN PORTER JOSEPH HERBST AND HEARD CREATIVE CORPORATION DEFENDANTS APPELLANTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed except insofar as it concerns demands 13, 14, and 15 in the third notices to produce with respect to the individual defendants and the order is affirmed without costs.

Memorandum: Plaintiff is an advertising agency, and the individual defendants are principals of a competing advertising agency, defendant Heard Creative Corporation (Heard), who were previously employed by plaintiff in high-level positions. The individual defendants resigned their positions at plaintiff in January and February 2022 and formed Heard, taking with them other employees and at least one major client.

Plaintiff commenced this action in April 2022, asserting causes of action for, inter alia, breach of fiduciary duty, misappropriation of confidential and proprietary information, tortious interference with contractual relations, tortious interference with prospective business relations, and unjust enrichment. More than four years of discovery ensued, including myriad demands by plaintiff for evidence and information from Heard and the individual defendants (collectively, defendants).

During discovery, defendants moved to vacate in part a July 2025 order, which determined a sanctions motion by plaintiff (sanctions order). In relevant part, the sanctions order directed defendants to produce documents responsive to plaintiff's third notices to produce or to file a verified statement that such documents had already been disclosed or did not exist. Defendants now appeal from an order granting the motion to vacate in part and denying it in part and directing defendants to respond to multiple demand paragraphs of plaintiff's third notices to produce or to provide a verified statement that the production has already been made or that the production is protected by a privilege or that no such documents exist. This Court stayed enforcement of that order pending appeal with respect to demands 13, 14, and 15 in the third notices to produce to each individual defendant. According to defendants, Supreme Court should have vacated the sanctions order in its entirety.

As a preliminary matter, we note that “[a]n appeal from a discovery order is rendered moot ․ when the disputed material is disclosed before the appeal is decided” (Bermudez v Peuser, 169 AD3d 1473, 1473 [4th Dept 2019]; see Buff v Janover LLC, 245 AD3d 409, 410 [1st Dept 2026]). Here, inasmuch as defendants, during the pendency of this appeal, have complied with the sanctions order by providing the information relating to those demands in the third notices to produce that were not subject to our stay of enforcement of the order on appeal, we dismiss the appeal as moot except insofar as it relates to the parts of the order on appeal directing defendants to respond to demands 13, 14, and 15 in the third notices to produce with respect to the individual defendants (see generally Nystrom v Rome Mem. Hosp., Inc., 169 AD3d 1480, 1480 [4th Dept 2019]; Khoury v Chouchani, 27 AD3d 1071, 1073 [4th Dept 2006]).

As a further preliminary matter, we reject plaintiff's contention that the record is incomplete and the appeal should be dismissed on that ground. CPLR 2219 (a) requires an order to, among other things, “recite the papers used on the motion,” which “fulfills the purpose of defining the scope of the record on appeal” (Charalabidis v Elnagar, 188 AD3d 44, 48 [2d Dept 2020]). Here, defendants included in the record all the papers recited by the court in the order from which they appeal, and we do not agree with plaintiff that we need all the papers submitted in support of and in opposition to the sanctions order to decide this appeal.

With respect to the merits, we reject defendants’ contention that the court, in its sanctions order, sua sponte directed defendants to comply with the third notices to produce and therefore abused its discretion. Although “[a]n order issued sua sponte does not decide a motion made on notice” (Matter of Joycelyn E. v Julianne R., 234 AD3d 477, 478 [1st Dept 2025]; see CPLR 5701 [a] [2]), the sanctions order at issue in this case was not issued sua sponte. Instead, the order was issued in response to a motion in which plaintiff requested monetary sanctions and asked the court to direct defendants to produce the information requested in the third notices to produce. The motion also sought “such other and further relief as [Supreme] Court deems just and proper.” The court declined to impose monetary sanctions on defendants but granted plaintiff's alternative request for an order directing defendants to comply with the discovery demands. The fact that the court granted relief different from the primary relief sought by the moving party does not necessarily imply that the court acted sua sponte where, as here, “a plain reading of [the] motion papers placed [the nonmoving party] on notice” of the relief being requested (Hall v God’s House of Refuge, 227 AD3d 1378, 1379 [4th Dept 2024]).

Defendants further contend that the court abused its discretion in directing defendants to comply with the demands in paragraphs 13, 14, and 15. “[I]t is well established that [a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion ․ Nevertheless, where discretionary determinations concerning discovery and CPLR article 31 are at issue, [we are] vested with the same power and discretion as [Supreme Court, and thus we] may also substitute [our] own discretion even in the absence of abuse” (Gena v Mu, 240 AD3d 1405, 1406 [4th Dept 2025] [internal quotation marks & emphasis omitted]; see Manner v Yancey, 218 AD3d 1196, 1197 [4th Dept 2023]; Mosey v County of Erie, 148 AD3d 1572, 1573 [4th Dept 2017]). Here, we conclude that the court did not abuse its discretion, and we see no basis on this record to substitute our own discretion (cf. Gena, 240 AD3d at 1406-1407).

Notably, the law requires “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]), and “[w]hat is material and necessary is left to the sound discretion of the lower courts and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000] [internal quotation marks omitted]; see Murphy v Kaleida Health, 243 AD3d 1261, 1262 [4th Dept 2025]). “The test is one of usefulness and reason” (Andon, 94 NY2d at 746 [internal quotation marks omitted]).

In light of the allegations in this case, including evidence that defendants may have failed to preserve relevant evidence (see generally DG&A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 AD3d 1316, 1319 [3d Dept 2010]), and giving due deference to the “ ‘broad discretion’ ” (Gena, 240 AD3d at 1406) of the court that has supervised the acrimonious discovery in this action for several years, we cannot conclude that the information demanded in paragraphs 13, 14, and 15 of the notices to produce directed to the individual defendants is not material and necessary under the requisite liberal interpretation of those terms (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court