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Repeated Invitations to Review 60 to 80 Banker’s Boxes of Documents In Response to a Discovery Demand Constituted Willful and Contumacious Behavior Justifying the Striking of the Complaint

The Third Department determined Supreme Court properly struck the pleadings based upon plaintiffs’ failure to comply with discovery demands.  Plaintiffs sued defendants for profits allegedly lost when plaintiffs failed to procure a printing and copying contract with the state.  The defendants sought discovery of documents related to the lost profits (alleged to be $1,500,000). Although plaintiffs supplied some relevant information, the discovery demands were repeatedly met with an invitation to review 60 to 80 banker’s boxes of documents in a warehouse:

We recognize that plaintiffs provided certain documents and that [plaintiff’s principal] appeared at a deposition. This limited cooperation does not necessarily preclude a finding of willful and contumacious behavior… . Plaintiffs had the burden to prove damages and defendants were entitled to review documents supporting the damages claim prior to trial. Notably, plaintiffs were able to create and provide annual sales summaries, but never provided the documents that were used to calculate the sales figures. The record confirms that despite Supreme Court’s frequent intervention and direction to produce the documents in a more organized fashion, plaintiffs continued to insist that their offer to have defendants sift through 60 to 80 boxes of miscellaneous business records was adequate. Indeed, plaintiffs refused to respond otherwise even after defendants narrowed their document request following [a] deposition. * * *

In our view, the record demonstrates “[a] pattern of noncompliance” sufficient to support Supreme Court’s finding that plaintiffs’ conduct was willful … . Under the circumstances, we thus conclude that the court did not abuse its discretion in granting defendants’ motion and striking plaintiffs’ complaint. BDS Copy Inks Inc, v International Paper, 2014 NY Slip Op 08692, 3rd Dept 12-11-14

 

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