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N.Y. C.P.L.R. 3103 governs the subject of protective orders for disclosure abuses, and confers broad discretion upon a court to fashion appropriate remedies both where abuses are threatened and where they have already occurred. N.Y. C.P.L.R. 3103(a) states that a court may at any time on its own initiative, or on motion of any party or witness, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. Service of a notice of motion for a protective order shall suspend disclosure of the particular matter in dispute. If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.
An employee, in her action alleging sexual harassment and discrimination deliberately and secretly read what she recognized as confidential documents of the attorney for the employer and supervisor during a conference between the parties. She concealed the documents and then took them. Having taken them, she photocopied them, kept them accessible at the office, and insisted on retaining a set for herself at home. Upon being ordered by the lower court to return everything in her possession, she made notes of the documents and, even after surrendering the final copy, held onto the notes. The lower court held that the employee and her attorney's actions were so egregious in taking material that was clearly attorney work product that the only remedy was dismissal of the complaint.
Was the dismissal a proper exercise of the trial court's discretion under CPLR 3103 (c)?
The court agreed and affirmed the dismissal. The employee argued that the dismissal was beyond the lower court's power and an abuse of discretion. The court held that N.Y. C.P.L.R. 3103(c) conferred authority onto the lower court to enter any order, including an order of dismissal that was appropriate. The court held that dismissal was appropriate based on the heinousness of the employee's action.