Discovery, electronic and otherwise

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

CPLR § 1024 Unknown parties

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Henderson-Jones v City of New York, 2011 NY Slip Op 06327 (1st Dept., 2011)

By order entered on June 1, 2010, the court stated, "Upon the foregoing papers, it is ordered that this motion to strike defendant's answer is denied."


"[I]t is well settled that the drastic remedy of striking a party's pleading pursuant to CPLR 3126 for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious or due to bad faith" (McGilvery v New York City Tr. Auth., 213 AD2d 322, 324 [1995]). Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses (see Johnson v City of New York, 188 AD2d 302 [1992]; Nunez v City of New York, 37 AD3d 434 [2007]). A party that permits discovery to "trickl[e] in . . [with a] cavalier attitude . . should not escape adverse consequence" (Figdor v City of New York, 33 AD3d 560, 561 [2006]).


As drastic as the penalty of striking an answer is, it serves the important function of deterring obstreporous litigation behavior. Indeed, the Court of Appeals recently made the following observation:

"As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that if the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010] [internal quotation marks, alteration, and citations omitted]).



Defendants' behavior in this matter clearly implicates the values articulated in Gibbs. Plaintiff was required to serve three discovery notices on defendants to determine the identities of the officers who executed the warrant, and to this day defendants have not complied. The information sought is simple and straightforward, and, most importantly, easily discoverable. The discovery demands were made in addition to a FOIL request and the furnishing of an authorization designed to lessen defendants' burden in searching for the appropriate names. Moreover, defendants were ordered by the court, on no fewer than three occasions, to produce documents containing the officers' names or to reveal the names outright. To the extent defendants made any effort to divulge the names of the officers who executed the search warrant, they made the effort only because plaintiff pressed the issue. It is not unreasonable to deduce from this record that had plaintiff not sought enforcement of unequivocal court orders requiring the production of the officers' names, defendants, to this day, would not have provided even the scant information that they eventually provided. Moreover, defendants failed to demonstrate that they even attempted to comply with their discovery obligations. An affidavit regarding the unavailability of documents that are the subject of a discovery order must document a thorough search conducted in good faith. It should include details such as "where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, [and] whether a search [was] conducted in every location where the records were likely to be found" (Jackson v City of New York, 185 AD2d 768, 770 [1992]).


Here, the affidavits submitted by defendants reveal that the efforts that defendants maintain they took to ascertain the names of the officers were so unimaginative and lacking in diligence that it is hard to characterize them as anything other than willfully designed to thwart plaintiff. Searching old desks and lockers is woefully insufficient. As demonstrated by the unchallenged affidavit by plaintiff's expert, the Police Department is a sophisticated bureaucracy with a system for collecting and storing information concerning arrests and prisoner processing that is not limited to the furniture and notebooks assigned to the officers involved. Indeed, defendants did not even attempt to explain why it would have been futile to search the areas and databases suggested by plaintiff's expert. They addressed the expert's opinion only to the extent of impugning his qualifications.


Defendants' argument that plaintiff's request for the documents containing the names of all 50 of the Gang Squad officers was overbroad reveals a disdain for the numerous court orders issued in this case. From the early stages of the litigation, defendants were directed, in absolute terms, to disclose the names of the officers involved in the execution of the warrant on plaintiff's apartment. Thus, the format of plaintiff's initial requests for the information is irrelevant. Defendants could have appealed from the orders, but they did not. That they continue to argue, even now, that plaintiff asked for the documents in an imprecise manner confirms their outright disdain for the court's authority to supervise discovery.


As to the substitution of Sergeant Van Orden, plaintiff demonstrated that she made a diligent inquiry to identify the names of the officers involved before commencing this action (see CPLR 1024; Goldberg v Boatmax://, Inc., 41 AD3d 255 [2007]). She served the unidentified officers by an alternative means of service authorized by the court pursuant to CPLR 308(5) (see Harkness v Doe, 261 AD2d 846 [1999]). Thus, she should have been permitted to substitute Van Orden as a defendant. We reject defendants' position that plaintiff waited too long to move to substitute Van Orden; the substitution was "deemed" effective when plaintiff learned of Van Orden's identity (CPLR § 1024; see Woodburn Ct. Assoc. I v Wingate Mgt. Co., 243 AD2d 1043,  1045 [1997]).

Elias v City of New York, 2011 NY Slip Op 06330 (1st Dept., 2011)

In a June 9, 2010 order, the court directed the City "to respond to [plaintiff's] discovery notice dated 1/15/10 for the location of west side of Riverside Dr at Tiemann PL north to St Clair and south to W 122nd." On or about July 12, 2010, the City responded to the court's June 9, 2010 order. An appended DOT form letter dated July 6, 2010 again advised that a search regarding "Riverside Drive and Tiemann Place, Manhattan" "produced no records" for the two years prior to and including the day of the accident.

In August 2010, plaintiff again moved for an order striking the City's answer on the ground that the City had willfully failed to comply with numerous discovery orders. In opposition, the City, emphasizing the drastic nature of the relief sought, argued that its conduct was not "willful and contumacious" and that when such a showing has not been made, an appropriate sanction for dilatory conduct is to permit a defaulting party "one final opportunity to comply." Further, the City contended that, in its submissions dated July 12, 2010 and May 11, 2010, it had fully complied with the court's June 9, 2010 order and adequately responded to plaintiff's January 15, 2010 supplemental discovery notice.

In an order dated October 13, 2010, the court denied nine of plaintiff's demands, three of them on the ground that "City represents documents have been produced." But the court ordered the City to produce, within thirty days, "written complaints, and/or prior written notices, repair orders, [and] cut forms, for the sidewalk on the west side of Riverside Drive, at its intersection with Tiemann Place, for 2 years prior to the date of accident" and to provide an "affidavit if no documents exist" within 45 days. Finally, the court stated that "[f]ailure to comply with this order will result in the striking of the City's answer (emphasis in original)."

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant's request  to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant's untimely, unresponsive and lax approach to complying with the court's previous orders warrants the striking of defendant's answer (see Byam v City of New York, 68 AD3d 798 [2009]).

Wright v Mount Vernon Hosp., 2011 NY Slip Op 07417 (2nd Dept., 2011)

As a sanction against a party who "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony," or "striking out pleadings" (CPLR 3126[2], [3]). Here, the plaintiff's willful and contumacious conduct can be inferred from the plaintiff's repeated failure to comply with orders directing that her deposition be commenced or completed by a date certain, the plaintiff's adjournments of her deposition, and the inadequate excuses offered to explain her noncompliance (see Commisso v Orshan, 85 AD3d 845; Rawlings v Gillert, 78 AD3d 806, 807; Caccioppoli v Long Is. Jewish Med. Ctr., 271 AD2d 565, 566). Although the plaintiff's conduct was willful and contumacious, contrary to the contention of the defendant Mount Vernon Hospital, under the  circumstances of this case, the sanction of striking the complaint would have been too harsh. Accordingly, the Supreme Court providently exercised its discretion in granting its motion pursuant to CPLR 3126 to the extent of precluding the plaintiff from testifying at trial.

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew. The additional facts submitted upon renewal were personally known to the plaintiff when the original motion was made, and she did not proffer a reasonable excuse for her failure to present those facts at that time (see Saunds v Estate of Johnson, 29 AD3d 670, 671; Caramoor Capital Group v Blauner, 302 AD2d 550; Caffee v Arnold, 104 AD2d 352).

 Kasoff v KVL Audio Visual Servs., Inc., 2011 NY Slip Op 06651 (1st Dept., 2011)

Plaintiff's motion to strike should have been granted to the extent of prohibiting defendants from offering evidence in support of the contention that plaintiff was fully paid the Miscellaneous commission of $47,731.47, and awarding plaintiff that amount. The record establishes that defendants' counsel actively interfered with discovery by intercepting documents under subpoena to a third party. Defendants also admittedly altered a commission report pertaining to the Miscellaneous account and produced it in the course of discovery as if it were the original business record. These acts, together, evidence a sanctionable pattern of behavior (see 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245, 245-246 [1990]; see also Garnett v Hudson Rent A Car, 258 AD2d 559 [1999]) requiring preclusion.

Facey v Silver Express Cab Corp., 2011 NY Slip Op 06549 (2nd Dept., 2011)

As a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," a court may issue an order, inter alia, "prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony" or "striking out pleadings" (CPLR 3126 [2], [3]). A court may invoke the drastic remedy of striking a pleading, however, only upon a clear showing that the failure to comply with court-ordered discovery was willful and contumacious (see Argo v Queens Surface Corp., 58 AD3d 656 [2009]; Paca v City of New York, 51 AD3d 991, 993 [2008]). Here, the record does not support a finding that the appellants willfully and contumaciously failed to produce the defendant Mohammad Akbar for a deposition. Under the circumstances, the appropriate remedy was an order precluding the appellants from calling Akbar as a witness at trial (cf. Patel v DeLeon, 43 AD3d 432, 433 [2007]; Williams v Ryder TRS, Inc., 29 AD3d 784, 785 [2006]).

Tener v Cremer, 2011 NY Slip Op 06543 (1st Dept., 2011)

The Uniform Rules addressing the discovery of ESI are fairly recent. They took effect in 2009. However, the Commercial Division Rules have addressed discovery of ESI for some time. Rule 8(b) of the rules contains requirements similar to those in the Uniform Rules. The Commercial Division for Supreme Court, Nassau County has built on Commercial Division rule 8(b) to develop the most sophisticated rules concerning discovery of ESI in the State of New York. That court also publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue.  

ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Accordingly, discovery rules contemplate data recovery. For instance, the Uniform Rules include the "anticipated cost of data recovery and proposed initial allocation of such cost" in the scope of electronic discovery (Uniform Rules for Trial Courts [22 NYCRR] § 202.12[c][3]).

The Nassau Guidelines urge that parties should be prepared to address the production of ESI that may have been deleted. The Nassau Guidelines state that at the preliminary conference, counsel for the parties should be prepared to discuss:

"identification, in reasonable detail, of ESI that is or is not reasonably accessible, without undue burden or cost, the methods of storing and retrieving ESI that is not reasonably accessible, and the anticipated costs and efforts involved in retrieving such ESI."

(New York State Supreme Court, Commercial Division, Nassau County, Guidelines for Discovery of Electronically Stored Information [ESI]), effective June 1, 2009, II[c][4]).

The Nassau Guidelines also suggest that the parties be prepared to discuss "the need for certified forensic specialists and/or experts to assist with the search for and production of ESI" (id. at II [c][13]) Most important, the Nassau Guidelines do not rule out the discoverability of deleted data, but rather suggest a cost/benefit analysis involving how difficult and costly it would be to retrieve it:

"As the term is used herein, ESI is not to be deemed inaccessible' based solely on its source or type of storage media. Inaccessibility is based on the burden and expense of recovering and producing the ESI and the relative need for the data" (id. at IV).[FN4]

The Federal Rules of Civil Procedure take a similar, although slightly more restrictive, approach. Rule 45 provides specific protections to non-parties. A person responding to a subpoena "need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost" (Fed Rules Civ  Pro rule 45[d][1][D]). Moreover, "non-party status is a significant factor in determining whether the burden imposed by a subpoena is undue" (Whitlow v Martin, 263 FRD 507, 512 [CD Ill 2009]). Nevertheless, a federal court may still "order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)" (Fed Rules Civ Pro rule 45[d][1][D]). Rule 26(b)(2)(C)(i)-(iii) requires a court to limit any discovery: (1) "that is unreasonably cumulative or duplicative," (2) "can be obtained from some other source that is more convenient, less burdensome or less expensive," (3) "where the party has already had ample opportunity to obtain the information by discovery in the action" or (4) when "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues." The Advisory Committee Notes explain that the costs of retrieving the information are properly part of this analysis.

Meanwhile, some federal courts have suggested strict limits on the discovery of specific types of data that are typically overwritten or ephemeral. For example, the Seventh Circuit Electronic Discovery Pilot Program has adopted several "principles" to guide litigants through the discovery of ESI. In particular, Principle 2.04 governing the scope of preservation states that certain categories of ESI "generally are not discoverable in most cases." (Seventh Circuit Electronic Discovery Committee, Seventh Circuit Electronic Discovery Pilot Program, 14-15, Oct. 1, 2009). These categories include:

1 "Deleted," slack," fragmented," or "unallocated" data on hard drives; 2 Random access memory (RAM) or other ephemeral data; 3 On-line access data such as temporary internet files, history, cache, cookies etc; 4 Data in metadata fields that are frequently updated automatically, such as last-opened dates; 5 Backup data that is substantially duplicative of data that is more accessible elsewhere; and 6 Other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business (id.). However, the federal courts may still order the discovery of data from these sources in an appropriate case (see Victor Stanley, Inc. v. Creative Pipe, Inc. 269 FRD 497, 524 [D Md. 2010]["[t]he general duty to preserve may also include deleted data, data in slack spaces, backup tapes, legacy systems, and metadata."]); Columbia Pictures, Inc. v. Bunnell, 245 FRD 443 [CD Cal. 2007] [ordering production of server log data]). We also note Judge Scheindlin's groundbreaking decision in Zubulake v UBS Warburg, LLC, 217 FRD 309, 316 [SDNY 2003] [in developing framework for cost/benefit analysis, court noted that discovery obligations apply not only to "electronic documents that are currently in use, but also [to] documents that may have been deleted and now reside only on backup disks."]).

Based on the specific facts of this case, we find that the Nassau Guidelines provide a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the  horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Moreover, similar to rule 26(b)(2)(C)(iii), the approach of the Nassau Guidelines, has the benefit of giving the court flexibility to determine literally whether the discovery is worth the cost and effort of retrieval.

Here, plaintiff has variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff has demonstrated "good cause" (see Fed Rules Civ Pro rule 45[d][1][D]) necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.

However, the record is insufficient to permit this court to undertake a cost/benefit analysis. Accordingly, we remand to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintains, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption [FN5]. Some of these questions (particularly [1] and [2]) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation (see Whitlow 263 FRD at 512). Of course in the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.

Further, it is worth mentioning that CPLR 3111 and 3122(d) require the requesting party to defray the "reasonable production expenses" of a nonparty. Accordingly, if the court finds after the hearing that NYU has the ability to produce the data, the court should allocate the costs of this production to plaintiff and should consider whether to include in that allocation the cost of disruption to NYU's normal business operations. In this latter consideration, the court should also take into account that plaintiff waited one year before sending the subpoena and preservation letter.

The court also erred in transferring the case to Civil Court. Although the complaint seeks damages, it also seeks equitable relief that is not within the jurisdiction of Civil Court (see CPLR 325[d]; W.H.P. 20 v Oktagon Corp., 251 AD2d 58, 59 [1998]).

Accordingly the order of the Supreme Court, New York County (Doris Ling-Cohan, J.),  entered September 14, 2010, that denied plaintiff's motion to hold nonparty NYU in contempt for failing to comply with a judicial subpoena, should be reversed, on the law, without costs, and the matter remanded to Supreme Court for a hearing on whether the information plaintiff seeks is "inaccessible" and hence whether NYU has the ability to comply with the subpoena. The order of the same court and Justice, entered September 24, 2010, that sua sponte transferred the action to the Civil Court pursuant to CPLR 325(d), should be reversed, on the law, without costs, and the order of transfer vacated.

Hoi Wah Lai v Mack, 2011 NY Slip Op 08563 (2nd Dept., 2011)

The Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion pursuant to CPLR 3126 to strike the appellants' answer. A court may strike an answer as a sanction if a defendant "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126; see Thompson v Dallas BBQ, 84 AD3d 1221; Mazza v Seneca, 72 AD3d 754). However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious (see Polsky v Tuckman, 85 AD3d 750; Moray v City  of Yonkers, 76 AD3d 618; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Here, the plaintiffs failed to make such a showing. At the time the plaintiffs moved to strike the appellants' answer, the action had been pending for less than five months, the appellants had not missed any court-ordered deadlines, and, in fact, the appellants had already served a response to the plaintiffs' notice to produce (see Palomba v Schindler El. Corp., 74 AD3d 1037, 1038). In addition, the motion was not supported by an affirmation of good faith, as required by 22 NYCRR 202.7 (see Quiroz v Beitia, 68 AD3d 957, 960; Dennis v City of New York, 304 AD2d 611, 613).

Ferguson v Hess Corp., 2011 NY Slip Op 08478 (1st Dept., 2011)

Supreme Court providently exercised its discretion in vacating plaintiff's default and restoring the action to the calendar. The action has merit, plaintiff has substantially complied with discovery and retained new counsel, and there is a strong public policy favoring resolution of cases on the merits (Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]). In view of the foregoing, we need not reach defendants' argument regarding plaintiff's motion to renew.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: