Commercial Division Blog

Posted: October 6, 2023 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Motion to Compel, Discovery/Disclosure

Defendant Must Personally File Jackson Affidavit Where Defendant Claims to Have No Documents Responsive to Certain Categories

On September 6, 2023, Justice Jennifer G. Schechter of the New York County Commercial Division issued a decision in PJSC Natl. Bank Trust v Pirogova, Index No. 160130/2020, 2023 NY Slip Op 33050(U) on plaintiff’s motion to compel responses to certain interrogatories and document requests.  The Court held in part that, where the defendant claimed to have no documents responsive to certain categories of document requests, that defendant herself must provide a “Jackson Affidavit” attesting to the lack of documents.  Specifically, the Court explained:

Far more important is Pirogova's assertion that she lacks documents responsive to request nos. 21-24, which seek documents sufficient to show her assets and debts at the time of the subject transfers in 2015 (Dkt. 464 at 304). Pirogova claims that "at the time she left the Russian Federation, she left various personal properties, including business and financial documents that would have reflected her assets" (Dkt. 469 at 12-13). However, plaintiff plausibly avers that it seems doubtful that Pirogova would lack any documents responsive to these requests (see Dkt. 481 at 18-22). Indeed, she did not personally file an affidavit in opposition to this motion. Thus, among other issues, the court has no idea what documents were left in Russia, where they might currently be, and why--even if she cannot go there herself--she could not hire someone to retrieve them for her.

Under these circumstances, Pirogova (not her counsel) must personally file a detailed Jackson affidavit regarding these categories of documents. For the avoidance of doubt, merely parroting what her counsel stated in his affirmation will not suffice as it does not come close to the level of detail required for a Jackson affidavit. In addition, among the usual required information, the Jackson affidavit shall provide detailed information based on personal knowledge regarding the potential location of records relating to the assets and liabilities identified in plaintiffs brief and the efforts Pirogova undertook to locate them before representing that she has no responsive documents at all. Pirogova is reminded that documents held by current and former agents, including attorneys and accountants (regardless of where they are located), are considered within her possession, custody and control, and her Jackson affidavit must address her efforts to locate documents from those sources.

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