In Sound Around, Inc. v. Friedman, No. 24-CV-1986 (DLC) (KHP) (S.D.N.Y. Oct. 8, 2025), New York Magistrate Judge Katherine H. Parker, finding “[t]hat Sound Around’s lawyers did not look for and produce relevant financial data pertaining to the calculation of defendants’ commissions is inexcusable”, granted the Friedman Defendants’ oral motion for production of data, and also ordered discovery sanctions in the form of attorneys’ fees and costs associated with the original motion to compel, the motion for reconsideration, and the oral motion to compel for Sound Around.

Case Discussion and Judge’s Ruling

In this case, the Friedman Defendants moved for reconsideration of the Court’s order denying their motion to compel Sound Around to produce certain documents. The Court held a hearing on the motion, at which time the Friedman Defendants informed the Court that a Sound Around witness who was deposed in September 2025 had identified a database called the “Data Warehouse” containing information pertinent to their sales and calculation of their commissions. They contended that the testimony demonstrated that Sound Around had lied to or misled the Court about the existence of data and failed to produce information that was responsive to their document requests. Accordingly, they made an oral motion for production of data from that database so that they can compute their commissions, which they contended in their counterclaims were improperly computed.

Sound Around argued that it didn’t know about the database before September 30 and was not required to produce information from the database because it consists of “raw data” and would require it to create a document, which it contended is not required by the Federal Rules of Civil Procedure. It also argued that the Friedman Defendants should have identified the database and proposed search terms for it. In response, counsel for Executive Laundry interjected as an officer of the Court to say that Sound Around’s counsel was misrepresenting the data systems. The Court, “troubled by these developments”, ordered Sound Around to provide a letter to the Court, explaining itself and the contents of the Data Warehouse, why it had not been identified earlier and why relevant data elements relevant to the computation of defendants’ commissions could not be produced in the form of a spreadsheet or other format.

Addressing the motion for reconsideration, Judge Parker stated: “The Friedman Defendants’ briefing on the motion was cursory and convoluted, and therefore, the Court largely denied the motion because defendants failed to identify responsive documents and information they thought existed but were not produced and further failed to demonstrate that Sound Around’s declarants were making misrepresentations about the Power BI system… The motion for reconsideration largely raised new arguments not raised in the earlier motion… It is inappropriate to raise new arguments in a motion for reconsideration that were not raised in the initial motion. Defendants do not point to any information the Court overlooked or new information in their written motion. Nor do they provide a basis for finding that this Court made a clear error. The motion for reconsideration is therefore denied.”

As for the oral motion for production of data, Judge Parker stated: “It is now clear from the argument in Court on October 3 and Sound Around’s letter submission, that Sound Around and its counsel utterly failed to identify relevant repositories of electronically stored information pertinent to defendants’ counterclaims concerning the calculation of their commissions as required by the Federal Rule of Civil Procedure. This Court has been critical of Sound Around’s conduct in discovery in various rulings but has not imposed sanctions. Sanctions are now clearly warranted for Sound Around’s conduct in discovery, because it is now clear that data does exist in the Data Warehouse relating to sales of products, tariffs and other expenses used to compute defendants’ commissions.”

Continuing, she said: “Sound Around’s counsel is absolutely wrong that it is/was not required to produce responsive information stored as data in systems over which it has custody and control. Federal Rule of Civil Procedure 34 has long required responding parties to conduct a reasonable search for documents and information relevant to the claims and defenses. Perhaps Sound Around’s counsel has not read Rule 34 or case law interpreting it in the last twenty years or is simply unaware of their ethical duty under New York Rule of Professional Conduct 1.1 to stay up-to-date on technology relevant to their practice and requirements of applicable rules of Civil Procedure… The Advisory Committee Notes to Rule 34 from 2006… make clear that ‘documents’ includes ESI and state that it is ‘improper to allow a party to evade discovery obligations on the basis that the label [of “document”] had not kept pace with changes in information technology.’”

Judge Parker added: “To the extent Sound Around blames defendants for failing to identify the database or provide search terms, its blame is misdirected. As the responding party, Sound Around is best situated to identify repositories of potentially responsive and relevant ESI and the best way of producing it in a usable form. Indeed, the 2006 Advisory Notes specifically recognize this and states that Rule 34 does not require the requesting party to choose a form or forms of production because it may not know the form in which ESI is maintained.”

While noting that Sound Around states that it now has spreadsheets with all of the information it could extract in the form of a spreadsheet, Judge Parker stated: “This is welcome news; however, it should have happened at the outset of discovery, not as the end of discovery approaches and in response to a motion to compel.” Continuing, she stated:

“In sum, Sound Around and its counsel:

• failed to conduct a reasonable search for relevant repositories of information;
• failed to produce relevant data concerning Defendants’ commissions;
• failed to comply with Rule 34’s requirements by identifying relevant information that was being withheld on the basis of objections and by failing to produce responsive data;
• misled defense counsel and the Court as to the reasonableness of their search and the existence of information relevant to the computation of defendants’ commissions; and
• failed to comply with Rule 26(g) that requires counsel to sign discovery responses attesting that they are complete and correct as of the time it is made.”

As a result, Judge Parker granted the Friedman Defendants’ oral motion for production of data and also ordered discovery sanctions in the form of attorneys’ fees and costs.

So, what do you think? Have you ever seen an oral motion for production of data before? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.

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