In Chen v. Thai Greenleaf Rest. Corp., No. 21-CV-01382 (MKB)(JMW) (E.D.N.Y. May 28, 2025), New York Magistrate Judge James M. Wicks granted in part Plaintiffs’ motion for sanctions against two sets of defendants for noncompliance with court orders to produce employment-related documents and their failure to submit Jackson Affidavits explaining the absence of those documents.

Case Discussion and Judge’s Ruling

In this case involving wage disputes, Plaintiffs sought relief against two sets of defendants – the “Thai Greenleaf Defendants” and the “Greenleaf Defendants”.

The Court had initially ordered the production of contact information for all nonexempt employees employed after March 16, 2018, in support of conditional certification for a collective action under the FLSA. While some effort was made by the Greenleaf Defendants to supplement this information, what was eventually produced fell short: a list of ten names was provided, but without essential data such as phone numbers, email addresses, or employment dates. For the Thai Greenleaf Defendants, the situation was worse: they produced nothing of value. When pressed, their attorney claimed they had no additional information and failed to produce any sort of affidavit or explanation by the Court’s March 14, 2025 deadline.

To compel compliance or clarify the absence of records, the Court ordered the defendants to either provide the outstanding documents or submit Jackson Affidavits (which are meant to attest, under oath, that a thorough search for the documents was conducted, specifying where records would have been kept, what efforts were made to retrieve them, and whether they were destroyed or no longer exist) by that March deadline.

The Thai Greenleaf Defendants, however, failed to provide any such affidavit, with their counsel (John P. Stebe) stating: “Defendants will continue its search and provide a Jackson affidavit after thorough search has been completed.” In response, Judge Wicks stated, noting their failure to submit Jackson Affidavits: “The Court is extremely skeptical of this assurance in light of the recent non-compliance with the Court’s directive to produce a Jackson Affidavit and lack of explanation from Mr. Stebe why one has not been submitted to date. As of the Oral Argument, counsel for Thai Greenleaf Defendants had not provided Plaintiffs’ counsel with a Jackson Affidavit.”

The Greenleaf Defendants did somewhat better, delivering a Jackson-style affidavit and certain bank records on the morning of oral argument. Judge Wicks stated: “Counsel for Plaintiff ultimately agreed at oral argument that upon examination the affidavit appeared to satisfy what the Court had directed.”

Still, he added: “Despite having an opportunity to do so in their opposition papers to Plaintiffs’ sanctions motion, both Defendants failed to comply with the undersigned’s directive to submit a Jackson Affidavit by a date certain. The time for compliance has come and gone. The undersigned now proceeds to analyze whether the imposition of sanctions requested by Plaintiffs’ is appropriate under the circumstances.”

Noting that “Thai Greenleaf Defendants’ sole argument is that ‘all documents concerning prior employees have been provided and that there is nothing further in Defendants’ possession on this issue’”, Judge Wicks stated: “By Mr. Stebe’s assertion that no further information is in Defendant’s possession, he effectively concedes that the Thai Greenleaf Defendants failed to maintain the requisite information demanded by the relevant regulations… Consequently, the sanction of publication of notice at Thai Greenleaf Defendants’ expense is a proper sanction under the circumstances.” So, Judge Wicks ordered them to bear the cost of both print and online publication of the FLSA notice to potential collective members.

As for sanctions against the Greenleaf Defendants, Judge Wicks carefully applied the relevant Patterson four-factor test: the defendants’ explanation for their noncompliance; the importance of the missing documents; the prejudice to plaintiffs; and the feasibility of a continuance. Judge Wicks found that the Greenleaf Defendants offered no persuasive justification for failing to produce records (such as corporate ownership documents and financial statements) essential to the plaintiffs’ successor liability theory. He also noted the importance of these documents, the prejudice created by the delay in a four-year-old case and rejected any notion that further continuances would serve the interests of justice.

As a result, Judge Wicks ruled: “Accordingly, after weighing the Patterson factors, the Court concludes that the Greenleaf Defendants are precluded from offering as evidence at trial any of the documents previously requested or demanded but not produced…on the issue of successor liability. Excluded from this preclusion order are the bank, lease and related documents the Greenleaf Defendants produced at oral argument, which are outlined in Plaintiffs’ Supplemental Briefing”.

Judge Wicks denied Plaintiffs’ request for adverse inference sanctions, stating: “at this juncture, the Court finds that the harsh sanction of an adverse jury instruction is not appropriate or supported by the case law”, and he also denied Plaintiffs’ request for monetary sanctions, stating: “During oral argument counsel for Plaintiffs raised, for the very first time, an application for monetary sanctions against the Greenleaf Defendants” and that “Nowhere in Plaintiffs’ Notice of Motion is there a request for monetary sanctions against the Greenleaf Defendants”, a requirement of Local Rule 7.1(a)(1) to seek those sanctions.

So, what do you think? Was the Defendants’ failure to submit Jackson Affidavits by the deadline the primary cause fot the sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.

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