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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: May 12, 2018

IAS Court Did Not Err in Striking Defendants’ Pleadings as a Discovery Sanction

On May 10, 2018, the First Department issued a decision in Rosengarten v. Born, 2018 NY Slip Op. 03465, affirming the striking of defendants’ pleadings as a discovery sanction, explaining:

The motion court’s decision to strike, based on a finding that defendants’ conduct with respect to its discovery obligations was willful and contumacious and without reasonable excuse, was a proper exercise of its discretion. The record amply demonstrates that from the start of the discovery process defendants engaged in a pattern of willful and contumacious conduct by, inter alia, disregarding court orders despite being repeatedly warned of the ramifications of doing so, providing discovery responses that were unduly burdensome and without reviewing them, and otherwise failing to meaningfully comply with the discovery requests.

(Internal quotations and citations omitted).

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called “discovery”). This decision discusses the problem of litigants not performing their discovery obligations. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).

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