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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: March 18, 2015

Defense Counsel Ordered to Pay Plaintiffs Attorneys’ Fees As A Sanction For “Dilatory Discovery Conduct”

On March 4, 2015, Justice Bransten of the New York County Commercial Division issued a decision in Vladeck, Waldman, Elias & Engelhard, P.C. v. Paramount Leasehold, L.P., 2015 NY Slip Op. 50298(U), sanctioning defense counsel for “dilatory” conduct in discovery.

In Vladeck, a dispute over a commercial real estate lease, the plaintiff sought discovery sanctions for a pattern of misconduct by defense counsel, including (1) the failure to implement a litigation hold; (2) late production of documents, which required the re-calling of witnesses who had already been deposed; and (3) improperly putting non-privileged documents on a privilege log. Justice Bransten granted the motion, explaining:

Defendant’s counsel’s conduct during discovery in the instant action was frivolous within the meaning of 22 N.Y.C.R.R. Section 130-1.1(c). Defendant’s counsel failed to direct its clients to implement a litigation hold, failed to produce relevant documents until depositions were underway, and improperly included relevant non-privileged emails on its privilege log. Defendant’s counsel’s conduct supports an award of sanctions.

The Court concludes that an award of costs adequately serves the purpose of sanctioning Defendant’s counsel and is proportional to Defendant’s counsel’s dilatory conduct.

(Citations omitted.) This decision demonstrates that, in the Commercial Division, obstructionist practices in discovery can spell trouble for your client—and for you as the attorney.

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