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Current Developments in the Commercial Divisions of the
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Posted: November 2, 2013

Failure to Timely Raise Discovery Disputes with the Court Waives Them

On October 21, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Gama Aviation Inc. v. Sandton Capital Partners, LP, 2013 NY Slip Op. 32648(U), showing the importance of dilligently identifying and raising discovery disputes.

The Gama Aviation decision dealt with several issues, including two motions to compel the production of documents. Both were denied. Among the reasons for the denial was that the movants did not bring the motions until the close of discovery, as much as two years after document production began. As Justice Bransten held in connection with the motion to compel relating to a non-party:

Although CPLR 3122 does not impose a time limit upon a party seeking discovery to bring a motion to compel production, if a party fails to make a motion to compel within a reasonable time, she may forfeit the right to obtain the items sought. New York courts have consistently held that motions to compel that are filed late in a case, and long after the initial requests were made, are inappropriate and inexcusable, and should be denied without further consideration.
Here, having waited over two years from the issuance of their subpoenas to move to compel KEF to produce documents, and nearly a year after KEF provided documents seeking to cure the deficiencies alleged in plaintiffs’ January 2012 letter, plaintiffs cannot reasonably claim that their delay was excusable, particularly as KEF is not even a party to this litigation. Plaintiffs have had ample opportunity to take discovery from KEF, and as such, the motion to compel is denied.

(Citations and internal quotations omitted) (emphasis added).

The lesson here is plain. At the same time, the solution is not always simple. It can take time to identify the gaps in a document production and to make the record necessary to establish that the documents sought are relevant and that they exist but were not produced. And, of course, courts are justifiably impatient with litigants who do not try to resolve discovery disputes between themselves before raising them with the court. Still, as Gama Aviation illustrates, if you wait until the end of discovery to tee up your discovery disputes, you may have waited too long.

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