In Sidman, et al. v. Concord Arena Parking, LLC, et al., No. 15-CV-7426-CBA-SJB (E.D.N.Y. May 11, 2021), New York Magistrate Judge Sanket J. Bulsara denied the defendants’ and third-party plaintiffs motion to compel documents from plaintiffs and third-party defendants, finding that “Defendants ‘fail[ ] to offer anything more than hypothetical inferences in support of [their] claim’ that Plaintiffs and 700 Park ‘ha[ve] engaged in the sort of misconduct that would merit discovery on discovery.’”

Case Background

In this case, the defendants claimed that the document production of the other parties had been deficient and in bad faith, as evidenced by their paltry production of only a handful of documents and asked the Court to order the parties to “use a to-be-agreed-upon set of search terms to locate and produce documents in good faith” and to permit them to conduct additional depositions based on the new documents.  The defendants raised the same issue over three years earlier, claiming that:

“Since the close of discovery, Plaintiffs have produced nearly 4,000 pages of emails without attachments. Indeed, even with the attachments missing, Plaintiffs’ post-discovery production is over three times longer than the collection of documents they previously produced. Defendants have no idea where all of these ‘new’ documents came from or why Plaintiffs did not produce them earlier. Yet, Plaintiffs have (1) reneged on their prior agreement to sign affidavits describing the methods used to assemble and produce documents in this case; and (2) sought to use their untimely (and still incomplete) production to raise new questions the substantial volume of document that Defendants produced in good faith. Not only are Plaintiffs’ complaints untimely, their unwillingness to sign the agreed-upon affidavits speaks volumes about their ongoing bad faith. Accordingly, defendants request leave to file a motion to appoint an independent entity to search Plaintiffs emails and electronic files at Plaintiffs’ expense.”

The judge back then gave counsel leave to each serve interrogatories inquiring as to the methods undertaken with respect to their searches for discoverable information, but the defendants did not do so.

Judge’s Ruling

In considering the motion, Judge Bulsara stated: “Defendants say that “it is inconceivable” that there are not more documents in the production…But without providing any factual basis for their conclusion, Defendants are only, again, making empty assertions…There is no such concrete evidence here. Defendants did not—as they could have—serve renewed interrogatories about the process for collecting and searching documents. Such discovery could have established that there were documents that existed but were not produced…They also do not cite to a provision of any electronic discovery protocol (presumably because one does not exist) that Plaintiffs and Park 700 breached in conducting their search for electronic documents.”

Going further, Judge Bulsara stated: “Defendants have not taken the necessary predicate steps. Instead, they make the same assertions they did three years ago about document production. Judge Shields directed both sides in 2018 to respond to an interrogatory about their document production. After receiving that response, Defendants could have taken affirmative steps to seek discovery relief and identify with specificity the categories of documents that are allegedly missing. Instead, it appears no steps were taken to follow-up, which makes this most recent allegation of bad faith and incomplete production ring hollow.”

In finding “[t]he motion lacks merit”, Judge Bulsara stated: “Defendants ‘fail[ ] to offer anything more than hypothetical inferences in support of [their] claim’ that Plaintiffs and 700 Park ‘ha[ve] engaged in the sort of misconduct that would merit discovery on discovery.’…For these reasons, the motion to compel is denied, and the attendant motion for an extension of the discovery schedule is likewise denied.”

We just finished our monthly EDRM case law webinar (video should be available here shortly) and we’re already working on next month’s cases for the webinar on July 21st!  Mark your calendars!

So, what do you think?  Based on the defendants’ claims, do you think they had more than “hypothetical inferences” regarding discovery violations?  Please share any comments you might have or if you’d like to know more about a particular topic.

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