Litigation hold

China Dev. Indus. Bank v Morgan Stanley & Co. Inc., 2020 NY Slip Op 02987 [1st Dept. 2020]

Plaintiff did not impose a litigation hold until July 2010. However, the record does not support the court’s conclusion that plaintiff was obligated to preserve documents relevant to the transaction between the parties as early as October 2007. The evidence does not show that plaintiff “reasonably anticipated” litigating against defendants at that time, but shows rather that a credible probability of litigation against defendants arose only significantly later (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 43 [1st Dept 2012]). Nor does the record support either the finding that plaintiff selectively preserved certain beneficial documents and recordings related to the transaction for purposes of supporting its legal claims against defendants or the finding that plaintiff refused to produce key witnesses or prevented defendants from deposing them.

Since plaintiff had no duty to preserve evidence in 2007 and reasonably implemented a litigation hold in 2010 upon notice (see The Sedona Conference, Commentary on Legal Holds, Second Ed.: The Trigger & The Process, 20 Sedona Conf J 341 [2019]; VOOM HD at 43), there is no issue regarding the destruction of records neither intentionally, willfully nor negligently. Accordingly, a spoliation sanction is not triggered and a culpable state of mind analysis is not reached.

3126 and conditional orders

Mehler v Jones, 2020 NY Slip Op 02103 [1st Dept. 2020]

The motion court providently exercised its discretion in issuing a conditional order of dismissal, in light of plaintiff’s history of noncompliance with court orders requiring her to appear for a further deposition (see CPLR 3126[3]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 220 [1st Dept 2010]).

Plaintiff contends that her behavior was neither willful nor contumacious. However, by issuing a conditional order, the court “relieve[d] [itself] of the unrewarding inquiry into whether [plaintiff’s] resistance was willful” (Board of Mgrs. of the 129 Lafayette St. Condominium v 129 Lafayette St., LLC, 103 AD3d 511, 511 [1st Dept 2013] [internal quotation marks omitted]).

On her motion to renew, plaintiff failed to submit new facts (CPLR 2221[e][2]), i.e., facts that existed but were unknown to her at the time defendants made their motions (see Matter of Naomi S. v Steven E., 147 AD3d 568 [1st Dept 2017]). Instead, she submitted facts that developed after the conditional order that decided the prior motions was issued.

Plaintiff’s proper recourse was to seek to vacate the order on the ground of excusable default, pursuant to CPLR 5015(a)(1) (see Hutchinson Burger, Inc. v Bradshaw, 149 AD3d 545, 545 [1st Dept 2017]; Country Wide Home Loans, Inc. v Dunia, 138 AD3d 533 [1st Dept 2016]). Even if we treat the motion as a motion to vacate (see CPLR 2001), we must deny it. Although plaintiff demonstrated a reasonable excuse for her failure to comply with the conditional order, she failed to demonstrate a meritorious medical malpractice claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

More discovery fun time

Kiernan v Booth Mem. Med. Ctr., 2019 NY Slip Op 06596 [2d Dept. 2019]

“A party is not entitled to unlimited, uncontrolled, unfettered disclosure” (Geffner v Mercy Med. Ctr., 83 AD3d 998, 998; see McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 547, 548). ” The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed'” (Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843, quoting Mattocks v White Motor Corp., 258 AD2d 628, 629 [citation omitted]). Here, the plaintiffs’ request for additional information and color photographs of certain Forest View personnel who worked on the floor where the decedent resided on February 5 and 6, 2008, was palpably improper because it was overbroad and unduly burdensome (see JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1055; Stepping Stones Assoc., L.P. v Scialdone, 148 AD3d 855, 856; Pesce v Fernandez, 144 AD3d 653, 655; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was to compel the production of such material.

Kiernan v Booth Mem. Med. Ctr., 2019 NY Slip Op 06597 [2d Dept. 2019]

“The determination whether to strike a pleading or to preclude evidence for failure to comply with court-ordered disclosure lies within the sound discretion of the court” (Palmieri v Piano Exch., Inc., 124 AD3d 611, 612; see Neenan v Quinton, 110 AD3d 967, 968). However, the drastic remedy of striking a pleading or even precluding evidence pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious (see MacKenzie v City of New York, 125 AD3d 821, 822; Palmieri v Piano Exch., Inc., 124 AD3d at 612; Gutman v Cabrera, 121 AD3d 1042, 1043). Here, Forest View timely complied with the court-ordered discovery and adequately explained that it had previously disclosed the identity of the health aides and their employment statuses on September 14, 2017. Thus, there was no clear showing that Forest View engaged in any willful and contumacious noncompliance with regard to disclosure in this matter (see e.g. MacKenzie v City of New York, 125 AD3d at 822; Palmieri v Piano Exch., Inc., 124 AD3d at 612).

Discovery mid-trial (CPLR 3102(d), law of the case, and willful refusal

Matter of Michael R. v Amanda R., 2019 NY Slip Op 06454 [2d Dept. 2019]

A party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for posttrial discovery. Nor do the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. In view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.


Third, contrary to the Family Court’s conclusion that the mother was also barred from objecting to the amount of arrears by the doctrine of law of the case, that doctrine is only applicable to “legal determinations that were necessarily resolved on the merits in a prior decision” (J.P. Morgan Sec., Inc. v Vigilant Ins. Co., 166 AD3d 1, 8 [1st Dept 2018] [emphasis added] [internal quotation marks omitted]). Since the mother’s earlier-filed objections were denied on procedural grounds, the application of the doctrine of the law of the case did not apply under the circumstances here.

Rosenberg & Estis, P.C. v Bergos, 18 AD3d 218 [1st Dept. 2005]

The record in this attorney fee dispute discloses that defendants willfully refused or simply failed to avail themselves of the opportunity to take plaintiff’s deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying. Under these circumstances, defendants’ motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery (cf. Munoz v 147 Corp., 309 AD2d 647, 648 [2003]; Ortiz v Arias, 285 AD2d 390 [2001]).



O’Halloran v Metropolitan Transp. Auth., 2019 NY Slip Op 01318 [1st Dept. 2019]

The court providently exercised its discretion in granting in part plaintiff’s motion to compel discovery and ordering defendants to run searches of electronic mailboxes of defendants’ employees and to produce those documents responsive to plaintiffs’ requests (CPLR 3101[a]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [1st Dept 2009]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; GoSMILE, Inc. v Levine, 112 AD3d 469 [1st Dept 2013]). The record demonstrates that plaintiff’s requests seek material and necessary information, and that her search terms, all of which were to be combined with her name or nickname or the name or nickname of a coworker she alleges was discriminated or retaliated against on similar grounds, would result in the disclosure of relevant evidence, and are reasonably calculated to lead to the discovery of relevant information.

Plaintiff’s second Supplemental Request for Production of Documents, dated November 30, 2017, seeking all complaints, discrimination-related or not, involving defendant George Menduina’s conduct from 2010 to present, sought information material and necessary to this particular lawsuit because such information was relevant not only to whether Menduina, plaintiff’s supervisor, discriminated against plaintiff, but also to whether Menduina was more qualified than plaintiff to hold the very position that plaintiff alleges she was denied for discriminatory reasons.

Fowler v Buffa, 2019 NY Slip Op 01306 [1st Dept. 2019]

The trial court did not err in precluding a disability insurance form alleged to contain a statement against interest from defendant Anurag Shrivastava, M.D. The imposition of sanctions for discovery misfeasance is a matter better left to the sound discretion of the trial court (see Gomez v New York City Hous. Auth., 217 AD2d 110, 114 [1st Dept 1995]). CPLR 3101 provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, including a party’s own statements (see also Sands v News Am. Publ., 161 AD2d 30, 42 [1st Dept 1990]). Plaintiff’s disclosure of the document less than two days prior to trial was an unfair surprise for which no reasonable excuse was proffered (see Curbean v Kibel, 12 AD3d 206, 207 [1st Dept 2004]; Ward v Mehar, 264 AD2d 515, 516 [2d Dept 1999]).

3126 commensurate…and no further

Han v New York City Tr. Auth., 2019 NY Slip Op 00975 [1st Dept. 2019]

CPLR 3126 provides that if a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed . . . , the court may make such orders with regard to the failure or refusal as are just.” It is within the motion court’s discretion to determine the nature and degree of the penalty (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]), and the sanction will remain undisturbed unless there has been a clear abuse of discretion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]). The sanction should be “commensurate with the particular disobedience it is designed to punish, and go no further than that” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:8 at 497; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]).

Social Media

Vasquez-Santos v Mathew, 2019 NY Slip Op 00541 [1st Dept. 2019]

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v Henkin, 30 NY3d 656, 665 [2018]; see also Abdur-Rahman v Pollari, 107 AD3d 452, 454 [1st Dept 2013]).


Harris v Kay, 2019 NY Slip Op 00044 [1st Dept. 2019]

The court did not abuse its discretion in striking the complaint, given plaintiff’s repeated, willful and contumacious refusals to provide discovery and to comply with court’s orders over an approximately eight-year period (see McHugh v City of New York, 150 AD3d 561, 562 [1st Dept 2017]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 221-222 [1st Dept 2010]; see generally Merrill Lynch, Pierce, Fenner Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]). Even if plaintiff’s response to defendants’ first set of interrogatories could be considered “timely” pursuant to the court’s August 28, 2013 order, despite that the interrogatories were served more than six years prior, the response certainly does not “evince[] a good-faith effort to address the requests meaningfully” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Brown v Montefiore Med. Ctr., 2019 NY Slip Op 00226 [1st Dept. 2019]

The court’s September 28, 2015 order was predicated on the motion and cross motion by the defendants, the underlying issues of which had already been fully resolved by the parties’ so-ordered stipulation, dated August 4, 2015, issued after a preliminary conference. At the time of the court’s September 28th conditional preclusion order, there was no motion pending, and no request for any relief from the defendants. Given the circumstances, the court should have granted plaintiff’s motion to vacate the judgment. However, this in no way condones plaintiff’s counsel’s clearly dilatory behavior, which, based on the pattern evinced by the record, was willful.

The bold is mine.

Hopkins v City of New York, 2019 NY Slip Op 00388 [1st Dept. 2019]

The parties suspended scheduling of the deposition of the City’s witness on January 14, 2014 when plaintiff withdrew its request for an EBT while other discovery disputes were resolved. Thus, the court orders prior to January 14, 2014 do not support the imposition of sanctions. We agree with Supreme Court that the City’s noncompliance with subsequent disclosure orders did not give rise to an inference of willful and contumacious conduct. Given that there does not appear to be an actual prejudice to plaintiff, the court was within its discretion to provide defendant with one additional opportunity to submit to depositions before striking its answer (Figueroa v City of New York, 129 AD3d 596, 597 [1st Dept 2015]).

We further note that at the time this motion was pending, the City offered to produce the witness at issue.

Williams v Suttle, 2019 NY Slip Op 00163 [2d Dept. 2019]

The drastic remedy of dismissing a complaint for a plaintiff’s failure to comply with court-ordered discovery is warranted where a party’s conduct is shown to be willful and contumacious (see Harris v City of New York, 117 AD3d 790Almonte v Pichardo, 105 AD3d 687, 688; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210). The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time (see Candela v Kantor, 154 AD3d 733, 734; Pesce v Fernandez, 144 AD3d 653, 654; Gutman v Cabrera, 121 AD3d 1042, 1043; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210).

Here, the willful and contumacious character of the plaintiffs’ actions can be inferred from their repeated failures to comply with the defendant’s notices to appear for depositions and the deadlines set forth in the compliance conference orders over an extended period of time (see Wolf v Flowers, 122 AD3d 728, 729; Matone v Sycamore Realty Corp., 87 AD3d 1113, 1114). Furthermore, the plaintiffs failed to provide an adequate explanation for their repeated failures to comply with court-ordered discovery. While the plaintiffs established that the medical condition of Lawrey, who is a resident of the State of Georgia, required her to avoid travel and that her deposition could be conducted via live video conferencing (see Duncan v 605 Third Ave., LLC, 49 AD3d 494, 496), they did not provide any explanation for their failure to produce Williams, a resident of Westchester County, for a deposition.

Contrary to the plaintiffs’ contention, the defendant, who had first noticed depositions after serving her answer, had priority of depositions (see CPLR 3106[a]; Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 76-77), and the filing of an amended complaint did not automatically stay discovery.

In any event, when the plaintiffs failed to appear for depositions within the time specified in the conditional order of dismissal, the conditional order became absolute (see Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d at 602; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821; Matter of Denton v City of Mount Vernon, 30 AD3d 600). To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiffs were required to demonstrate a reasonable excuse for their failure to appear for depositions and that their cause of action was potentially meritorious (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80; Kirkland v Fayne, 78 AD3d 660, 661; Lerner v Ayervais, 16 AD3d 382Smith v Lefrak Org., 96 AD2d 859, affd 60 NY2d 828). The plaintiffs failed to demonstrate a reasonable excuse for their failure to appear for depositions on or before February 29, 2016.


Shohat v Suky, 2018 NY Slip Op 08548 [1st Dept. 2018]

Defendants engaged in willful and contumacious conduct warranting the penalty of striking their answer (seeCPLR 3126; McHugh v City of New York, 150 AD3d 561 [1st Dept 2017]). They failed to comply with several court orders directing compliance with outstanding discovery requests by dates certain. The discovery responses they served only after plaintiff moved to strike consisted almost entirely of objections.

Spivey v City of New York, 2018 NY Slip Op 08557 [1st Dept. 2018]

The default on which the dismissal was based — plaintiff’s failure to respond to a motion to dismiss under CPLR 3126, allegedly due to his counsel’s mis-calendaring of the return date — was not an isolated mistake but part of a pervasive pattern of neglect in prosecuting this action evident from the record, including his persistent failure to satisfy discovery obligations for about a year and a half. As part of a pattern of “intentional[] and repeated[] fail[ure] to attend to [his obligations]” (Imovegreen, LLC v Frantic, LLC, 139 AD3d 539, 540 [1st Dept 2016]), the law-office failure leading to the default was not excusable.

Suarez v Dameco Indus., Inc., 2018 NY Slip Op 08576 [1st Dept. 2018]

The motion court providently exercised its discretion in granting plaintiff’s motion to strike Dameco’s answer for willful failure to comply with discovery orders (see CPLR 3126). Dameco’s counsel offered a barebones affirmation disclosing that Dameco was now defunct and claiming that counsel’s attempts to contact unnamed former officers of Dameco through an investigative service had been unsuccessful, which was insufficient to establish good-faith efforts to comply (see Cavota v Perini Corp., 31 AD3d 362, 364 [2d Dept 2006]; Hutson v Allante Carting Corp., 228 AD2d 303 [1st Dept 1996]; see also Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004]; compare Lee v 13th St. Entertainment LLC, 161 AD3d 631 [1st Dept 2018]). Although Dameco was apparently still in business when the action was commenced, defense counsel provided no explanation for Dameco’s failure to preserve any records relating to its repair, service, and maintenance of the elevator that allegedly caused plaintiff’s injuries, including inspection records that Dameco was statutorily required to prepare. In light of plaintiff’s showing of willful failure to comply, and since the complete absence of records impedes plaintiff’s ability to prove his case, the sanction of striking Dameco’s answer was appropriate under the circumstances.

Aiken v Liotta, 2018 NY Slip Op 08621 [2d Dept. 2018]

We agree with the Supreme Court’s denial of the defendant’s motion to enforce certain orders of preclusion against the plaintiff Rosemary Wiltshire pursuant to CPLR 3126 and, thereupon, for summary judgment dismissing the complaint insofar as asserted by that plaintiff. Despite Wiltshire’s delays, she substantially complied with the relevant discovery demands and orders, and the defendant failed to demonstrate that the delays were the product of willful and [*2]contumacious conduct (see Brannigan v Christie Overhead Door, 144 AD3d 959, 960; McDermott v Bahnatka, 83 AD3d 1014, 1015; LOP Dev., LLC v ZHL Group, Inc., 78 AD3d 1020, 1020; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726Zouev v City of New York, 32 AD3d 850, 851; Passarelli v National Bank of Westchester, 81 AD2d 635, 636).

Conditional Order 3126

McIntosh v New York City Partnership Dev. Fund Co., Inc., 2018 NY Slip Op 07303 [2d Dept. 2018]

Contrary to the plaintiffs’ contention, under the language of the conditional order of preclusion, the plaintiffs’ failure to respond to outstanding discovery demands from even a single other party would result in the plaintiffs being precluded from presenting any evidence of damages at trial. The plaintiffs did not meet their burden to avoid the adverse effect of the conditional order of preclusion, as they did not “demonstrate a reasonable excuse for the failure to comply with the order and the existence of a potentially meritorious” cause of action (Naiman v Fair Trade Acquisition Corp., 152 AD3d at 780).