Blogs

Posts Categorized: Discovery/Disclosure

Posted: February 8, 2018

Parties Not Allowed to Conduct Additional Relevance Review of Documents Found by ESI Search

On January 29, 2018, Justice Friedman of the New York County Commercial Division issued a decision in Matter of Nomura Asset Acceptance Corp. Alternative Loan Trust, Series 2007-1 v. Nomura Credit & Capital, Inc., 2018 NY Slip Op 30161(U), holding that the parties to an agreement regarding ESI search terms were not allowed to conduct... Read more »

Posted: February 7, 2018

Magistrate Judge Pollak Denies Motion To File Reply Under Seal Explaining That The Requirements To File Under Seal Are More Exacting Than Confidentiality Under A Discovery Protective Order

Posted by Solomon N. Klein, Litigation Partner Magistrate Judge Cheryl L. Pollak recently denied a plaintiff’s motion to file her reply under seal despite a confidentiality stipulation and order requiring that documents designated as confidential be filed under seal. (Martinez v. City of New York, 16 CV 79 (E.D.N.Y. Jan. 26, 2018) (AMD)(CLP)). The Court... Read more »

Posted: January 20, 2018

Limited Record Before Trial Court Did Not Justify Striking Answer as Discovery Sanction

On January 17, 2018, the Second Department issued a decision in PAL Envtl. Servs., Inc. v. LJC Dismantling Corp., 2018 NY Slip Op. 00301, reversing an order granting a discovery sanction, explaining: As public policy strongly favors the resolution of actions on the merits whenever possible, the striking of a party’s pleading is a drastic... Read more »

Posted: November 28, 2017

Judge Cogan Re-Imposes Sanctions in Case of International Intrigue

District Judge Brian M. Cogan recently re-imposed sanctions on the defendants in Funk v. Belneftekhim a/k/a Concern Belneftekhim, 14 CV 0376 (E.D.N.Y. Oct. 17, 2017) after the Second Circuit addressed the nuances of sanctioning parties for non-compliances with jurisdictional discovery. Of course, the term “jurisdictional discovery” is a bit of a misnomer, since a court... Read more »

Posted: October 12, 2017

RMBS Trustee Sanctioned for Using Data Sought From Quashed Subpoenas

On September 28, 2017, Justice Scarpulla of the New York County Commercial Division issued a decision in Home Equity Mortgage Trust Series 2006-5 by U.S. Bank N.A. v. DLJ Mortgage Capital, Inc., 2017 NY Slip Op. 32053(U), sanctioning an RMBS trustee for using borrower data that had been sought through subpoenas that the court had... Read more »

Posted: October 5, 2017

Destroyed Evidence Presumed Relevant When it is Intentionally Deleted

On October 5, 2017, the First Department issued a decision in Zacharius v. Kensington Publishing Corp., 2017 NY Slip Op. 06995, holding that evidence is presumed to be relevant when it is intentionally destroyed, explaining: Spoliation sanctions were providently granted. The record demonstrated that plaintiff was in control of her own email account; was aware,... Read more »

Posted: August 29, 2017

Court Grants Adverse Inference Sanction for Failure Adequately to Preserve Evidence

On August 14, 2017, Justice Scarpulla of the New York County Commercial Division issued a decision in Brook v. Peconic Bay Medical Center, 2017 NY Slip Op. 31728(U), granting an adverse inference sanction for failure adequately to preserve evidence, explaining: A party that seeks sanctions for spoliation of evidence must show that the party having... Read more »

Posted: August 6, 2017

Party Need Not Produce Documents Relating to Settlement Discussions

On July 27, 2017, Justice Ramos of the New York County Commercial Division issued a decision in Five Star Electric Corp. v. A.J. Pegno Construction Co., Inc./Tully Construction Co., Inc., 2017 NY Slip Op. 31591(U), holding that a party was not required to produce documents relating to settlement discussions, explaining: Documents and claims analyses disclosed... Read more »