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Current Developments in the Commercial Divisions of the
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Posted: March 25, 2014

Party Bound By Discovery Stipulation Signed by His Counsel

On March 19, 2014, the Second Department issued a decision in Born to Build, LLC v. Saleh, 2014 NY Slip Op. 01703, discussing the binding nature of stipulations between counsel concerning discovery.

In Born to Build, “[t]he appellant agreed, as part of a so-ordered preliminary conference stipulation and order signed by his attorney . . . to be deposed in New York at the office of the plaintiff’s counsel.” Later, the appellant moved for a protective order, asking that he be deposed “by remote electronic means.” The trial court denied the motion and the Second Department affirmed, explaining that:

[s]uch a stipulation constitutes a binding contract.

While a court may relieve a party of the consequences of a stipulation made during litigation where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, here, the appellant failed to demonstrate good cause sufficient to invalidate the stipulation. He also failed to demonstrate that his attorney lacked the authority to enter into the stipulation on his behalf. In any event, the appellant failed to establish that traveling from his home in Hong Kong to New York to be deposed would cause him undue hardship.

(Internal quotations and citations omitted) (emphasis added).

This decision makes the important point that as a litigator, if you make an agreement with your adversary, you should expect to be held to it.

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