Court Grants Motion To Compel Corrected Production Of Documents Produced In Inaccessible Form

Posted: November 17, 2025 / Written by: Joshua Wurtzel, Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Channing J. Turner / Categories Civil Litigation, Discovery/Disclosure, Motion to Compel

Court Grants Motion To Compel Corrected Production Of Documents Produced In Inaccessible Form

On October 6, 2025, Justice Andrew Borrok granted a motion to compel defendants to cure defects in their production of substantially inaccessible electronic documents. The case is Atlantic Specialty Insurance Company v. Calvano, Index No. 650912/2022.

Defendants Lynn R. Calvano, Katherine L. Lettera and Heather K. Calvano, together with related companies (collectively, the “Landmark Defendants”), produced six hard drives that were password protected and/or infested with malware rendering them inaccessible. This came after the Appellate Division had reversed Judge Borrok’s grant of summary judgment to Lettera and the Calvano defendants, “indicating that there were issues of fact” as to whether their accountant “had either actual or implied authority to sign their names on a personal indemnity guarantee”. Slip op. 2. Justice Borrok granted the motion of plaintiff Atlantic Specialty Insurance Company to compel:

Defendants provided Atlantic Specialty with six hard drives—many of which can not be accessed as they are password protected and may be infested with malware. Specifically, one hard drive is corrupted and can not be accessed without professional assistance at all. As the Landmark Defendants do not know what information is inside the hard drive, they can not credibly argue that the inaccessible hard drives do not contain relevant information as to the issues identified by the Appellate Division. As such, the Landmark Defendants must produce the documents on these hard drives and provide a plan and timeline to Atlantic Specialty as to its production (including engaging an appropriate ESI vendor and providing appropriate passwords, etc.) on or before November 7, 2025.

Slip op. 2-3. Justice Borrok also directed the Landmark Defendants to provide an index of documents on the hard drives they had produced, and granted unopposed motions brought both by plaintiffs and the Landmark Defendants to compel production by non-party Joseph Calvano. Id.

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