STRIKING THE ANSWER WAS TOO SEVERE A SANCTION FOR A DISCOVERY VIOLATION, THERE WAS NO SPOLIATION OF EVIDENCE, RATHER THERE WAS A DELAY IN PRODUCING THE EVIDENCE (FOURTH DEPT).

The Fourth Department determined a discovery violation had occurred, but it did not involve spoliation of evidence and striking defendant’s (the Clinic’s) answer was too severe a sanction. This is a medical malpractice action alleging a failure to diagnose breast cancer. The plaintiff sought reports generated by software (CAD) used to detect breast cancer:

… [J]ust prior to the scheduled date for trial, plaintiff issued a subpoena duces tecum on defendants requesting CAD structured reports. Defendants objected to the subpoena and … plaintiff moved to strike defendants’ answers or for other sanctions for defendants’ discovery violation. In response, defendants were eventually able to generate the CAD structured reports and provided them to plaintiff. …

… [A]lthough we agree with the court that plaintiff established that a discovery violation occurred, we conclude that the sanction of striking the answer of the Clinic was too severe under the circumstances of this case … . This case is not similar to a spoliation case because the CAD structured reports were never destroyed but, rather, were not generated and produced in a timely manner . We conclude that the Clinic should be sanctioned by imposing costs upon it for any additional expenses plaintiff incurred as a result of the delay in disclosure … . Woloszuk v Logan-Young, 2018 NY Slip Op 04176, Fourth Dept 6-8-18

CIVIL PROCEDURE (STRIKING THE ANSWER WAS TOO SEVERE A SANCTION FOR A DISCOVERY VIOLATION, THERE WAS NO SPOLIATION OF EVIDENCE, RATHER THERE WAS A DELAY IN PRODUCING THE EVIDENCE (FOURTH DEPT))/DISCOVERY (STRIKING THE ANSWER WAS TOO SEVERE A SANCTION FOR A DISCOVERY VIOLATION, THERE WAS NO SPOLIATION OF EVIDENCE, RATHER THERE WAS A DELAY IN PRODUCING THE EVIDENCE (FOURTH DEPT))/SANCTIONS (DISCOVERY VIOLATION, STRIKING THE ANSWER WAS TOO SEVERE A SANCTION FOR A DISCOVERY VIOLATION, THERE WAS NO SPOLIATION OF EVIDENCE, RATHER THERE WAS A DELAY IN PRODUCING THE EVIDENCE (FOURTH DEPT))