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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: July 6, 2019

Party Ordered to Pay Opponent’s Cost of Compelling Discovery As Sanction for Failing to Obey Discovery Orders

On June 14, 2019, Justice Masley of the New York County Commercial Division issued a decision in Borremans v. JG Worldwide LLC, 2019 NY Slip Op. 31772(U), ordering a party that failed to obey discovery orders to pay the costs of its opponent’s motions to compel, explaining:

If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, a party that permits discovery to trickle in with a cavalier attitude should not escape adverse consequence. Accordingly, CPLR 3126 provides various sanctions for violations of discovery orders, the most serious of which are striking a party’s pleadings or outright dismissal of the action. The nature of the sanction for disobedience regarding court-ordered disclosure generally lies within the discretion of the IAS court. Any sanction levied by a court must be proportionate to the conduct at issue, and deterrence is an appropriate factor to consider.

Here, defendants have violated three successive court orders to produce discovery, and delayed the speedy resolution of this action at great personal cost to the plaintiff. Aside from defendants’ callous disregard for this court’s time and orders, what is particularly egregious is defendants’ use of dilatory tactics to ruin Borremans’ credit score. While defendants have attempted to hamper the fair adjudication of this matter, Borremans’ credit score has continued to plummet. Thus, in light of this egregious conduct, sanctions in the form of paying Borremans’ attorneys’ fees incurred to resolve these discovery disputes is appropriate here.

(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 and what can happen to them if they do not. 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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