In a September 27, 2011, decision by Justice Bransten, the court denied plaintiff’s motion to compel but granted its motion to amend its complaint. Plaintiff provided defendant Chicago Board of Trade with software and related services to assist in the trade of futures and options on futures under a “network” agreement. When plaintiff allegedly disclosed the terms of the agreement to third parties, defendant served notice of material breach and ultimately terminated the agreement. Plaintiff then sued for breach of contract, and defendant counterclaimed. Plaintiff sought discovery regarding, among other things, consequential damages – namely, lost profits. Defendant objected, contending that because plaintiff did not assert a claim for lost profits, its related discovery request was not material and necessary to the prosecution or defense of the action. On plaintiff’s motion, the court sided with defendant, finding that plaintiff had not asserted such a claim in its complaint; that the request was unrelated to defendant’s counterclaim; and that plaintiff’s own discovery responses regarding lost profits did not constitute an “amplified pleading” for purposes of relevance. The court granted plaintiff’s motion to amend its complaint to add a claim for lost profits, however, finding that given the nature of this discovery dispute, defendant would not be inequitably surprised and would be permitted to conduct additional discovery in connection with the claim.
BGC Partners Inc. v Board of Trade of the City of Chicago, Sup Ct, New York County, September 27, 2011, Bransten, J., Index No. 600437/2009