Blogs

Posts Categorized: Discovery/Disclosure

Posted: December 29, 2016

Court Dismisses Both Complaint and Counterclaims for Discovery Abuses

On December 14, 2016, Justice Oing of the New York County Commercial Division issued a decision in Landmark Ventures, Inc. v. Gallucci, 2016 NY Slip Op. 32457(U), confirming a referee’s recommendation that both the plaintiff’s claims and the defendant’s counterclaims be dismissed as a discovery sanction, explaining: Following a number of appearances for conference, JHO... Read more »

Posted: November 13, 2016

Discovery Sanction Precluding Party From Offering Testimony or Evidence at Trial Upheld

On November 2, 2016, the Second Department issued a decision in Hasan v. 18-24 Luquer St. Realty, LLC, 2016 NY Slip Op. 07160, upholding a discovery sanction precluding a party from offering testimony or evidence at trial, explaining: If a party refuses to obey an order for disclosure or wilfully fails to disclose information which... Read more »

Posted: October 5, 2016

Non-Party Did Not Waive Common Interest Privilege

On September 29, 2016, the First Department issued a decision in 21st Century Diamond, LLC v. Allfield Trading, LLC, 2016 NY Slip Op. 06245, holding that a non-party did not waive the common interest privilege, explaining: The motion court based its finding that the common-interest privilege had been waived on a poorly worded analogy —... Read more »

Posted: September 2, 2016

Party’s Sale of Server During Lawsuit Leads to Adverse Inference As Sanction for Spoliation

On August 23, 2016, Justice Bransten of the New York County Commercial Division issued a decision in Oorah, Inc. v. Covista Communications, Inc., 2016 NY Slip Op 31618(U), imposing an adverse inference as a sanction for spolitation of electronic documents. In Oorah, the defendant, Covista, after making an apparently incomplete document production, transferred its server... Read more »

Posted: July 12, 2016

Dismissing Complaint Warranted Only if Spoliated Evidence Was Sole Means of Establishing Defense

On June 28, 2016, the First Department issued a decision in Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 2016 NY Slip Op. 05065, reversing a decision dismissing a complaint as a sanction for spoliation of evidence, explaining: In or about June 2014, [the defendant] filed a motion seeking dismissal of the complaint as a... Read more »

Posted: June 3, 2016

Letters Rogatory Denied for Failure to Show that Discovery is Crucial to Resolution of Key Issue

On May 31, 2016, the First Department issued a decision in Kahn v. Leo Schachter Diamonds, LLC, 2016 NY Slip Op. 04143, affirming the denial of a motion for letters rogatory, explaining: Plaintiff failed to establish that the discovery he seeks from nonparty entities in Brazil is crucial to the resolution of a key issue... Read more »

Posted: May 9, 2016

Court Properly Ordered Deposition of Transactional Counsel; Privilege Assertions Must Be Specific

On May 5, 2016, the First Department issued a decision in China Privatization Fund (Del.), L.P. v. Galaxy Entertainment Group Ltd., 2016 NY Slip Op. 03597, ordering transactional counsel to appear for deposition and requiring that any refusal to answer questions be justified by protecting specific privileged conversations or communications, explaining: The motion court providently... Read more »

Posted: March 16, 2016

Court Erred in Requiring Expert Testimony; Expert Testimony Presented Was Inadmissible

On March 10, 2016, the First Department issued a decision in Nussberg v. Tatintsian, 2016 NY Slip Op. 01749, holding that a court erred in requiring expert testimony on valuation but nonetheless affirming the court’s decision for the defendant because the testimony of the defendants’ experts was inadmissible, explaining: The court erred by requiring expert... Read more »

Posted: March 12, 2016

Refusal to Testify at Deposition Under Fifth Amendment Not Necessarily Fatal to Defense

On March 1, 2016, Justice Sherwood of the New York County Commercial Division issued a decision in Lipman v. Shapiro, 2016 NY Slip Op. 30358(U), illustrating that notwithstanding the inference that can be drawn from of litigant invoking his Fifth Amendment right not to testify at a deposition, invoking that right is not necessarily fatal... Read more »