Conseqences of Discovery Failures
Justice Ritholtz of Supreme Court, Queens County lays the issue out in the first sentence of the decision in 150 Centreville, LLC v Lin Assoc. Architects, PC 2013 NY Slip Op 23038 Decided on February 6, 2013 Supreme Court, Queens County Ritholtz, J. "The questions involved in this action are whether there should be any consequences to plaintiffs who commenced a litigation, waged for several years, but failed to preserve and safeguard the documents necessary to provide responses to defendants during discovery, and what ramifications and/or sanctions should flow from [*2]the failure. This opinion also raises novel issues regarding the issuance of attorney's fees under Part 130 of the Rules of the Chief Administrator, governing the award of costs and the imposition of financial sanctions for frivolous conduct in civil litigation."
"The Appellate Division, Second Department, has repeatedly stated that it will not tolerate a pattern of willful default and neglect in court-ordered discovery obligations. See, Bazoyah v Herschitz, 79 AD3d 1081, 1081-1082; Brownfield v Ferris, 49 AD3d 790, 791; Diamond v Vitucci, 36 AD3d 650; Rodriguez v New York Methodist Hosp., 3 AD3d 526; Clarke v UPS, Inc., 300 AD2d 614, 615; Piacentini v Mineola Union Free School Dist., 267 AD2d 290; Wynne v Wagner, 262 AD2d 556, 556, appeal dismissed, 94 NY2d 796; Williams v New Style Limousine, Inc., 1 Misc 3d 502, 506; Fujah v V-M Auto Refinishing Corp., 192 Misc 2d 170, 175; accord, Williams v Shiva Ambulette Serv., Inc.,AD3d, 2013 WL 322588 .
Five separate orders have been issued concerning plaintiffs' failure to engage in discovery: the Preliminary Conference Order of April 22, 2009, the Compliance Conference Order of September 8, 2009 that specifically referenced the defendants' set of [*8]interrogatories and demand for documents dated June 15, 2009, the Short Form Order of Dec. 14, 2009, the Short Form Order of March 18, 2011, and, finally, the So-Ordered Stipulation of Oct. 6, 2011. "
"The order of this Court dated December 14, 2009, dismissing the complaint without opposition, cited the New York Court of Appeals' decision in Kihl v. Pfeffer, 94 NY2d 118, where the Court unanimously affirmed the trial court's dismissal of a complaint for a plaintiff's failure to respond to a set of interrogatories. There, in Kihl, Chief Judge Kaye, writing for the Court, stated:
Regrettably, it is not only the law but also the scenario that is all too familiar [citations omitted]. 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, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders . . . as are just," including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.94 NY2d at 122-123.
Despite the admonition of the Court of Appeals in Kihl, in 1999, the Court, even a decade later, was still warning the Bar and litigants with the message that discovery orders needed to be obeyed. Specifically, in Gibbs v St. Barnabas Hospital, 16 NY3d 74, the Court of Appeals asserted that "there is also a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public." Gibbs, 16 NY3d at 81. The Court, in language certainly applicable to the facts of the case at bar, maintained: "Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution." Id.
That message still has not penetrated, requiring appellate courts to repeat it. Most recently, Justice Leonard B. Austin, writing for a unanimous panel of the Appellate Division, Second Department, in Arpino v F.J.F. & Sons Elec. Co., Inc.,AD3d, 2012 WL 6028883, 2012 NY Slip Op. 08271, articulated the applicable law:
As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system [citations omitted]. Compliance requires not only a timely response, but a good-faith effort to provide a meaningful response [citations omitted]. The failure to comply with deadlines and provide good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims" (see, Gibbs v. St. Barnabas Hosp., 16 NY3d at 81; Kihl v. Pfeffer, 94 NY2d 118, at 123). The Court of Appeals has also pointed out that "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules" (Gibbs v. St. Barnabas Hosp., 16 NY3d at 81), and has declared that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v. Pfeffer, 94 NY2d at 123; see generally, Cadichon v. Facelle, 18 NY3d 230). "
"A party has a duty to preserve, protect, and safeguard evidence when it has notice that the evidence is relevant to litigation or should have known that the evidence might be relevant to future litigation. See, e.g., VOOM HD Holdings LLC v EchoStar Satellite, L.L.C., 93 AD3d 33 [appellate court found that the destruction of emails for a four-month period, when a "litigation hold" should have been placed on electronically stored information, was, at a minimum, "grossly negligent"], aff'g 2010 WL 8400073, 2010 NY Slip Op 33759(U) & 2010 WL 8435623, 2010 NY Slip Op. 33764(U); S.B. v U.B.,Misc 3d, 953 NYS2d 831, 2012 NY Slip Op. 22313 ["(A) party is responsible for preserving evidence when they are on notice that it may be needed for litigation. [citation omitted]. This responsibility to preserve evidence may extend to items that are not in the possession of a party when that party negligently fails to take steps to assure its preservation."].