One of the most important parts of our practice, especially in terms of litigation, is the receipt of discovery and providing discovery to our adversaries. Document and information exchange often leads to motion practice where a party refuses to provide certain documents and information or is delinquent in providing them.
More often than not, if a party can show that they have made efforts to respond, either by partial responses or correspondence, a Court will not grant a motion to dismiss for failure to provide discovery. Often, attorneys will provide just the bare minimum by way of a response but that will be sufficient to withstand the “willful and contumacious” standard of conduct which results in dismissal.
It appears, from the recent decision of the Appellate Division, Second Department, that bare minimum, nonspecific, or non-complete discovery responses may no longer be enough to withstand dismissal. In Corex v. Janel Group of New York, Inc., 2016-07342 (2d Dept. 2017), plaintiff was given a final deadline to provide specific responses to the defendants demands and sworn responses to interrogatories. The Order included language which directed dismissal of the claims if full and adequate discovery was not received.
At the zero hour, plaintiff electronically filed unsworn, unsigned and undated affidavits stating that documents and information were lost by a prior principal of the plaintiff company and as such proper responses could not be provided. The Court found that unsworn, unsigned and undated affidavits were insufficient to satisfy responses to the discovery demands or adequate excuse for failure to adequately respond. The Appellate Division concurred and found that the initial failure to respond per the Preliminary Conference Order and subsequent failure to provide responses with sufficient specificity warranted dismissal of the case.
This decision confirms a recent trend within the venues in which we practice where Court’s are cracking down on discovery disputes, delays in completing discovery and parties who willfully delay the progression of a case. The scrutiny a Court applies to discovery non-compliance is like a pendulum, and recently in New York, the pendulum is swinging toward compliance. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.