Discovery matters.

Plaintiff suffered facial burns while using a heating pad and sued, among others, third-party defendant, claiming defective design and manufacture. During the course of discovery, third-party defendant refused to comply with plaintiff's notice to produce documents and information relating to its heating pads, claiming that the demanded information constituted trade secrets. Third-party defendant cross-moved for a protective order, but only in response to plaintiff's motion to strike its answer.

The Second Department denied the motion, in Hunt v. Odd Job Trading, which was decided on October 9, 2007, and converted the motion to strike, pursuant to CPLR 3126, to a motion to compel, pursuant to CPLR 3124. In granting that motion, the court noted that the failure to timely challenge the notice to produce forecloses inquiry into the propriety of the information sought except with regard to material which is privileged pursuant to CPLR 3101, or to a request which is palpably improper. The court said that, here, there was not even a minimal showing that the demanded information contained trade secrets.