Friedman v. SThree Plc. et al
Filing
200
ORDER re: Discovery. See attached Order for details. Signed by Judge Sarah A. L. Merriam on 10/24/2016. (Kaczmarek, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
DAN FRIEDMAN
:
:
v.
:
:
STHREE PLC., et al.
:
:
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Civil No. 3:14CV00378(AWT)
October 24, 2016
ORDER RE: DISCOVERY
On October 7, 2016, this Court held an in-person Discovery
Conference to address the issues raised by defendants regarding
plaintiff Dan Friedman’s (“plaintiff”) discovery responses.
[Docs. ##182, 191]. Plaintiff and his counsel, and counsel for
defendants participated in that conference. At the conference,
defendants indicated that they were unsatisfied with the
responses from plaintiff to their discovery requests. The Court
thoroughly addressed each of defendants’ discovery requests, and
defendants’ concerns regarding plaintiff’s production. The Court
also engaged in an ex parte conference with plaintiff and his
counsel, with the consent of defendants’ counsel, to discuss the
scope of the searches conducted to date.
Following the conference, the Court issued a Memorandum of
Conference and Order requiring plaintiff “to perform additional
searches; to review the results of each search; to provide a
certification detailing the nature of each search; and to
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identify any records that have not been produced on the basis of
privilege in a privilege log[.]” Doc. #182 at 2. The Court
carefully detailed the requirements for the additional searches,
the review process, and the certification. See generally, id.
The Court imposed a deadline of October 17, 2016, for the
production of the additional disclosures and certification. To
the extent defendants found deficiencies in plaintiff’s
additional production, the Court required defendants to file a
notice with the Court by October 19, 2016, identifying said
deficiencies. See id. at 12.
On October 13, 2016, the Court held a telephonic status
conference, on the record, to ensure that plaintiff was prepared
to meet the disclosure deadline of October 17, 2016. [Doc.
#187]. At the October 13, 2016, conference, counsel for
plaintiff requested a two day extension of the disclosure
deadlines, which the Court denied, due to the lengthy delays
that have already occurred in this case. See id. The Court also
reiterated that plaintiff was required to conduct the searches
anew, and stressed the importance of disclosing the documents by
the Court-ordered deadline. On October 17, 2016, as required,
plaintiff filed a certification regarding discovery. [Doc.
#190]. On October 19, 2016, counsel for the SThree defendants
and counsel for the Palladyne defendants each filed a response
to plaintiff’s certification and disclosure. [Docs. ##193, 194].
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Defendants’ responses assert that there are numerous
deficiencies with plaintiff’s October 17, 2016, production. On
October 21, 2016, plaintiff filed a response to defendants’
notices. [Doc. #198].
The Court held a telephonic status conference on the record
on October 21, 2016, in which counsel for all parties
participated to discuss the alleged deficiencies.
After consideration of the plaintiff’s certification,
defendants’ notices, plaintiff’s response, and the statements
made on the record on October 21, 2016, the Court has determined
that plaintiff has failed to adequately respond to the
defendants’ discovery requests and to comply with the Court’s
orders, and that sanctions are therefore appropriate.
I.
Legal Standard
Federal Rule of Civil Procedure 37 “provides a non-
exclusive list of sanctions that may be imposed on a party for
failing to obey an order to provide or permit discovery.”
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 179
F.R.D. 77, 80 (D. Conn. 1998) (citing Werbungs Und Commerz Union
Austalt v. Collectors’ Guild, Ltd., 930 F.2d 1021, 1027 (2d Cir.
1991)); see also Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). “Provided
that there is a clearly articulated order of the court requiring
specified discovery, the district court has the authority to
impose Rule 37(b) sanctions for noncompliance with that order.”
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Tucker v. Am. Int’l Grp., Inc., 936 F. Supp. 2d 1, 26 (D. Conn.
2013) (quoting Daval Steel Prods. v. M/V Fakredine, 951 F.2d
1357, 1363 (2d Cir. 1991)). “Monetary sanctions pursuant to Rule
37 for noncompliance with discovery orders usually are committed
to the discretion of the magistrate, reviewable by the district
court under the ‘clearly erroneous or contrary to law’
standard.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522,
525 (2d Cir. 1990).
Sanctions under Rule 37 are designed to effectuate three
goals:
First, they ensure that a party will not benefit from
its own failure to comply. Second, they are specific
deterrents and seek to obtain compliance with the
particular order issued. Third, they are intended to
serve a general deterrent effect on the case at hand and
on other litigation, provided that the party against
whom they are imposed is in some sense at fault.
Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir.
1988) (citations omitted). “When parties and/or their counsel
fail in their duty to conduct proper searches of ESI, sanctions
may be appropriate, even where the misconduct involves late
disclosure, as opposed to spoliation.” Nycomed U.S. Inc. v.
Glenmark Generics Ltd., No. 08CV5023(CBA), 2010 WL 3173785, at
*3 (E.D.N.Y. Aug. 11, 2010) (citation omitted).
II.
Discussion
In the instant matter, plaintiff has repeatedly failed to
meet his discovery obligations under the Federal and Local Rules
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of Civil Procedure. He has also failed to comply with the
Court’s Order of October 7, 2016. Among the deficiencies in
production observed by the Court, plaintiff still has not
clearly and unequivocally explained the scope of his search in
response to defendants’ requests; has not diligently and
appropriately sought copies of documents in his control but in
the physical custody of third parties; and has not timely
provided all responsive materials to defendants. This case has
been pending since March 25, 2014, and the parties are still
conducting jurisdictional discovery, largely because of the
plaintiff’s failure to pursue the matter diligently1 and to meet
his obligations. It is against that background that the Court
evaluates the current disputes.
A.
Electronic Production and Certification
Plaintiff’s certification indicates that after additional
searches were conducted on the search terms ordered by the
Court, “[a]ll of the documents reviewed and found to be
responsive were produced before 5pm EDT on October 17. Those
documents were the ones that were (1) located pursuant to the
searches conducted as described in ¶¶2-4 and (2) not previously
produced.” Doc. #190 at 2 [sic]. It appears to the Court that
For instance, on March 16, 2016, after seven months of
inaction, defendants filed a motion to dismiss this matter for
lack of prosecution. See Doc. #106.
1
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after conducting the Court-ordered searches, plaintiff disclosed
only those records that plaintiff believes were not disclosed
originally. The problem with this approach is that plaintiff’s
counsel has never been able to accurately describe the universe
of documents already produced to defendants.2 The Court intended
to require the plaintiff to produce all documents identified
during the new searches that are responsive to defendants’
requests, because it was clear to the Court that plaintiff did
not have a complete and accurate understanding of what had and
had not been produced previously. The Court also intended for
new searches to be conducted without limitation by any prior
disclosures because it appeared that prior searches and reviews
A glaring illustration of this problem relates to plaintiff’s
Dutch bank records. At the October 7, 2016, conference,
plaintiff’s counsel asserted that the records of plaintiff’s
Dutch bank account had been produced. Defense counsel asserted
that they had not. Plaintiff’s counsel responded: “We will -- my
understanding was that we had the production and we gave it to
them. We will check and see, whatever we’ve got they can have.”
Doc. #191 at 41. The Court inquired as to whether counsel could
identify the Bates numbers of the Dutch bank records, and
counsel could not. Plaintiff’s counsel had failed to bring a
copy of the records produced to date with him to the conference,
so, at the Court’s request, defense counsel provided a copy to
plaintiff’s counsel, and the Court requested that he review it
and identify the responsive Dutch bank records. After a review
of the production, counsel was unable to locate any such
records. He stated that he “recall[ed] a back and forth about
Dutch bank records” and that “maybe [he] got confused” and was
thinking, instead, of Dutch tax returns. Id. at 43-44. Counsel
then appeared to concede that the Dutch bank records had not
been produced.
2
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had been conducted solely by the plaintiff, rather than by
counsel.
Plaintiff’s counsel has made contradictory representations
about the discovery conducted to date, and his involvement
therein. For example, at the October 7, 2016, conference, he
stated that he “personally got involved in this this week in
terms of finally going into the computer.” Doc. #191 at 10.
Later in the conference counsel suggested that he had in fact
only conducted a review of the documents the night before the
conference. See Doc. #191 at 67 (“THE COURT: Okay, And when did
you conduct those reviews of the emails? MR. KAUFMAN: That was
-- those must have been -– would be last night.”). He further
stated that “Mr. Friedman did numerous searches[]” and that
“[h]e goes through, he produces them.” Id. at 14. See also id.
at 68 (“My client conducted numerous searches where I discussed
with him what needed to be produced[.]”). These statements
support the conclusion that counsel was uninvolved in the search
process until shortly before the October 7, 2016, conference.
Indeed, the Court asked counsel whether he or someone else with
legal expertise had reviewed the emails returned by each search
term, and counsel stated that he had not. Id. at 16.
As the Court has repeatedly reminded counsel, he has an
ongoing duty to oversee plaintiff’s efforts to comply with
discovery requests. See Doc. #191 at 14-15, 16.
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A party’s discovery obligations do not end with the
implementation of a “litigation hold” — to the contrary,
that’s only the beginning. Counsel must oversee
compliance with the litigation hold, monitoring the
party’s efforts to retain and produce the relevant
documents. Proper communication between a party and her
lawyer will ensure (1) that all relevant information (or
at least all sources of relevant information) is
discovered, (2) that relevant information is retained on
a continuing basis; and (3) that relevant non-privileged
material is produced to the opposing party.
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y.
2004). “[F]or the current ‘good faith’ discovery system to
function in the electronic age, attorneys and clients must work
together to ensure that both understand how and where electronic
documents, records and emails are maintained and to determine
how best to locate, review, and produce responsive documents.
Attorneys must take responsibility for ensuring that their
clients conduct a comprehensive and appropriate document
search.” Richard Green (Fine Paintings) v. McClendon, 262 F.R.D.
284, 290 (S.D.N.Y. 2009) (citation omitted).
Plaintiff’s counsel also represented that shortly before
the October 7, 2016, conference, a search was conducted of
plaintiff’s Gmail account on about 30 search words, which
returned results of between two hundred and five hundred emails
per search word. See Doc. #191 at 11. Once those results were
obtained, counsel stated, “we have to go through them all to
take out attorney-client, we have to literally do them one-byone.” Id. In response to inquiry from the Court, counsel stated
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that a total of about 1,500 documents had been produced. The
Court then calculated that if 30 search terms produced between
200 and 500 results each, that would create a universe of 6,000
to 15,000 emails; the Court inquired, then, why so many of these
emails had been withheld, particularly since no privilege log
had been produced. Id. at 13-15. Counsel indicated that “Mr.
Friedman has been able to –- has been able to siphon out the
stuff that was attorney-client privilege.” Id. at 15. Counsel
seemed to suggest that the emails had been found to be nonresponsive, rather than responsive but privileged, but was
unclear. It is thus not clear to the Court –- still -– whether
the emails produced by searching particular terms were reviewed
for responsiveness, for privilege, or both, and whether any
person with legal training was involved in that review.
Plaintiff’s counsel further stated, definitively, that Mr.
Friedman had no email accounts other than Gmail that he used
during the relevant time frame. See Doc. #191 at 28. Defense
counsel stated that they had reason to believe that plaintiff
had a Yahoo! account during this time period. The Court
inquired:
THE COURT: Okay. All right. So on the Yahoo account?
MR. KAUFMAN: The Yahoo account’s been defunct for at
least five to six years, and was never used at any
time related to anything to do with Amsterdam ever.
This is a matter of us disclosing –
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THE COURT: So he’s had no -- he hasn’t used the Yahoo
account for any purpose –
MR. KAUFMAN: None.
THE COURT: -- since January 1st, 2010?
Doc. #191 at 31. Counsel then appeared to backtrack from the
assertion that the Yahoo! account had not been used for any
purpose during the relevant time period:
MR. KAUFMAN: We’re going to check back. His clear
recollection is he never used it for any job search
before he ever heard of Palladyne or after.
THE COURT: I want to ask two different questions here.
MR. KAUFMAN: Sure.
THE COURT: One is did he use it for any purpose after
January 1st, 2010, including grub-hub or you know?
MR. KAUFMAN: Whatever it is.
THE PLAINTIFF: It would receive spam, and you know
subscriber-type emails, and I’d look at them. I haven’t
sent anything –
THE COURT: No outgoing since January 1st, 2010?
MR. KAUFMAN: No.
Doc. #191 at 31-32. However, when the Court observed plaintiff’s
Yahoo! account directly, in camera, the Court noted a
significant amount of activity in the Yahoo! account during the
relevant time period. The Court, of course, did not review the
account to determine whether it contained any responsive emails,
but it clearly was in operation, in some manner, during the
relevant time period. During the conference call with the Court
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on October 21, 2016, plaintiff’s counsel asserted that plaintiff
had implemented an email forwarding system by which emails
directed to his Yahoo! account were “intercepted” and forwarded
to his Gmail account without ever appearing in the Yahoo!
account. Counsel was unable to explain how this was possible,
but again asserted that there were no responsive emails
contained in the Yahoo! account. Despite the Court’s own ex
parte observations, plaintiff’s counsel stated that email during
the relevant timeframe sent to plaintiff’s Yahoo! address would
have appeared not in the Yahoo! account, but rather, only in the
Gmail account.
In sum, plaintiff’s counsel has made it virtually
impossible for either the defendants or the Court to gain a
clear understanding of what searches were conducted, when, and
by whom, and whether the results of the searches were reviewed
for responsiveness or privilege, or both.
Plaintiff’s certification regarding the results of the
searches does not, unfortunately, resolve the mystery of the
scope of plaintiff’s searches and production. Defendants note,
for instance, that the number of “responsive” records returned
by each search term, as described in the certification, does not
match the number of records with each search term actually
produced to defendants. Specifically, plaintiff’s certification
indicates that no responsive records were found for particular
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search terms; however, plaintiff produced records as part of his
October 17, 2016, production that include those particular
search terms in the body of the record. Plaintiff’s counsel
asserted that when multiple search terms resulted in the
identification of a single responsive document, plaintiff
reported that document as resulting from the search on only one
term, rather than the search on each term that in fact returned
the document. It is therefore impossible to tell whether a
particular search term yielded responsive records, and whether
all such records were necessarily produced.
Defendants also note that plaintiff’s certification states
that only the inbox, sent and spam folders were searched in both
plaintiff’s Gmail and Yahoo! email accounts. See Doc. #190 at 2.
A search of only certain subfolders within plaintiff’s email
accounts is inadequate; the Court was clear with plaintiff that
a “full search” must be done of plaintiff’s Yahoo! account,
which had previously not been disclosed, Doc. #190 at 8, and the
Court did not limit the additional search terms to specific
subfolders in the Court’s October 7, 2016, order. The need for a
search of all folders is particularly significant in this case,
because plaintiff has represented that some documents from the
relevant time period in his Gmail account were in separate
“archive” folders.
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It is unclear how, as a practical matter, plaintiff’s
failures can be addressed effectively at this point. The Court
cannot directly oversee each and every aspect of this electronic
search and production. Plaintiff’s deposition must go forward as
scheduled this week, as further delay is simply not an option.
It appears, based on the record to date, that requiring
plaintiff to conduct yet another search would fail to resolve
the problems that persist. In the alternative, the Court has
considered directing plaintiff to provide all electronic data to
an independent third party, which would then conduct appropriate
searches and produce appropriate reports, at plaintiff’s
expense. The Court has further considered requiring plaintiff to
disclose all communications containing particular search words,
whether or not they are otherwise responsive to the requests.
This case, as noted above, in still at the jurisdictional
discovery stage. Accordingly, the Court will not order
additional electronic discovery at this point. However,
plaintiff is cautioned against asking the Court to draw
inferences in his favor based on items not located during
discovery, in light of his failure to conduct an adequate
search.3 Monetary sanctions will be imposed at this time, as
The Court notes that plaintiff’s counsel appeared, at the
October 21, 2016, conference, to claim that the fact that no
emails to family and friends were identified in which plaintiff
expressed his intentions regarding long-term relocation to
3
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discussed more fully below. If this case proceeds beyond the
Court’s consideration of motions to dismiss, the Court will
impose strict discovery and case management rules, and will
require absolute compliance by plaintiff. Failure to comply in
the future will result in additional sanctions, including
potential dismissal of this action.
III. Non-Electronic Production
At the October 7, 2016, conference, plaintiff was ordered
to request responsive materials in his control but in the
custody of third parties, in particular, financial institutions.
See Doc. #182 at 8-10. That order was necessitated by
plaintiff’s failure to make any efforts beyond downloading
readily available online records in response to requests for
financial information. See, e.g., Doc. #191 at 36 (plaintiff’s
counsel explaining that plaintiff had not sought to obtain any
records from PayPal other than those available by direct
download from the website); id. at 39 (plaintiff’s counsel
asserting that he construes a “reasonable search” as being
Europe supported an inference that plaintiff had no such
intention. The Court finds this surprising, in light of
counsel’s prior representation that plaintiff did not
communicate with his family by email. See Doc. #191 at 26
(“Email communications with his mother, father, sister, he talks
to them by phone.”); Doc. #191 at 74 (“[H]e communicates with
his family by phone.”); Doc. #191 at 22 (“Mr. Friedman deals
with his friends by phone[.]”).
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limited to an online search); id. at 47-8 (plaintiff’s counsel
stating that closed accounts are not accessible).
As to PayPal records, for example, the Court and counsel
for plaintiff had the following colloquy:
THE COURT: Yes. Let me first ask you this, are
there records from before June of 2013?
MR. KAUFMAN: No, you can’t get them off of PayPal.
THE COURT: You can’t get them by direct download, or
they’re –
MR. KAUFMAN: Direct download.
THE COURT: Can they be obtained by a request to
PayPal?
MR. KAUFMAN: I don't know, but we’ll be happy to
make it.
Doc. #191 at 36.
The Court therefore required plaintiff to “direct requests
for his financial records [to specific institutions] ... for
plaintiff’s entire account history, including his transaction
history, for the relevant timeframe.” Doc. #182 at 9. Plaintiff
was further ordered to “provide a copy ... of all requests for
responsive documents that were directed to third parties” with
plaintiff’s certification on October 17, 2016. Id. at 11. At the
conference, with respect to these third-party requests, the
Court stated, “a request needs to be made directly to the
financial institution. And usually, a form needs to be filled
out, but every bank’s a little different. ... And I’m going to
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want to see all of those requests as part of the disclosure on
the 17th as well.” Doc. #191 at 128.
Instead of providing copies of requests actually made to
the financial institutions with his certification, plaintiff
provided what appear to be emails from plaintiff to his counsel
with the text of letters from plaintiff to financial
institutions cut and pasted into the body of the email. See Doc.
#190 at 9-12. The text pasted into the emails suggests that
plaintiff sent letters to the general, national customer service
address of various institutions, inquiring if there was a way to
obtain his records. The text indicates that the only method of
contact provided by plaintiff to the institutions is an email
address; no phone number is included.
Defendants contend that plaintiff’s requests are “unlikely
to result in prompt production because Plaintiff did not fill
out any forms or formal requests for records.” Doc. #193 at 11.
The Court agrees that plaintiff’s efforts are insufficient. It
does not appear that plaintiff made an effort to speak with a
representative from each institution to find out the procedure
to obtain his records; instead, he sent a general inquiry, by
mail, to each institution’s general inquiry address, and did not
even provide a phone number where he could be reached with a
response. The Court was able, in only a few minutes of online
research, to determine that most of the financial institutions
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at issue have branches in Connecticut and/or New York. It is
unclear why plaintiff did not simply visit a branch.
Therefore plaintiff shall immediately make a renewed effort
to obtain his financial records from these third-party
institutions. Plaintiff can visit, in person, the institutions,
if possible, to obtain his records; plaintiff can also call the
institutions to first determine their procedures and then
request the records accordingly. Any request — be it in person,
by phone, by email, by letter, by form, or by some other means –
must be documented and then produced. Such production, if it is
of a letter or form, must include an actual copy of the letter
or form that was provided to the institution. The Court reminds
counsel that he is obligated to oversee the discovery process on
his client’s behalf, and that this aspect of discovery is no
exception.
The Court also ordered plaintiff to request plaintiff’s
legal file from Attorney Mario Musilli, the attorney who
represented plaintiff in his foreclosure action and the sale of
his home. When the Court inquired as to the status of the file
on October 21, 2016, plaintiff’s counsel stated that after the
file had been requested on October 11, 2016, Attorney Musilli
left a phone message indicating that he had no records other
than those previously produced. This second-hand representation
is insufficient; it provides no guidance as to what search was
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conducted; who conducted the search; what records, if any,
Attorney Musilli maintains; and what records he had previously
produced to plaintiff. To the extent that Attorney Musilli has
no records related to his legal representation of plaintiff,
Attorney Musilli must so certify. Mr. Musilli cannot know what
documents – if any – have been produced previously to the
defendants in this matter. Thus, plaintiff must immediately
request a certification from Attorney Musilli regarding what, if
any, records are in his possession related to his representation
of plaintiff. Any records that are disclosed by Attorney Musilli
must be produced to defendants immediately, upon receipt. Any
documents that are withheld on the basis of privilege shall be
identified in a privilege log, in accordance with Rule 26(b)(5)
of the Federal Rules of Civil Procedure.
Finally, although defendants had originally requested
plaintiff’s tax returns for the relevant time period, plaintiff
apparently never actually requested his records from the IRS for
the relevant tax years, representing instead that he had not
filed taxes in 2012 and 2013 and therefore, there would be no
returns to request and produce. Accordingly, on October 7, 2016,
the Court required plaintiff to request from the IRS a copy of
his tax return and/or verification of non-filing for the
requested years. The form provided in court to plaintiff’s
counsel, IRS form 4506-T, states that most requests are
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processed within 10 business days. Plaintiff’s certification
indicates that the request was made by certified mail on October
11, 2016. See Doc. #190 at 3, 9. Thus, this information should
soon be returned from the IRS, and must be disclosed to the
defendants immediately upon receipt. In addition, the Court
ordered plaintiff to provide defendants with a copy of the
completed form; no such copy was produced. Accordingly,
plaintiff must produce to defendants a copy of the Form 4506-T
that was sent to the IRS immediately.
IV.
Deposition of Plaintiff
Plaintiff’s deposition is scheduled to take place on
October 26, 2016, at 10:00 a.m. Defendants request that, in
light of the ongoing deficiencies with plaintiff’s document
production, the Court grant defendants additional time to depose
plaintiff beyond the one day, seven hour limit set forth in Rule
30(d)(1) of the Federal Rules of Civil Procedure “with respect
to any documents produced by Plaintiff after October 17, 2016.”
Doc. #193 at 5. The motion for leave to conduct a second
deposition of plaintiff is GRANTED, contingent upon defendants
making a showing regarding the need for additional deposition
testimony based on plaintiff’s failure to make timely
disclosures. Plaintiff shall be made available for an additional
day of deposition, on a future date to be set by defendants, at
plaintiff’s expense. See Zubulake, 229 F.R.D. at 437 (requiring
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party to “pay the costs of any depositions or re-depositions”
required by the party’s late production). Plaintiff shall pay
all costs of any renewed deposition the Court finds necessary,
as well as reasonable attorneys’ fees incurred by defendants in
connection with the renewed deposition.
V.
Conclusion
As noted previously, “[f]ailure to comply fully with the
Court’s orders and deadlines may result in the imposition of
sanctions, including financial sanctions, preclusion of evidence
or claims, or dismissal or default.” Doc. #182 at 14.
Plaintiff’s failure to meet his discovery obligations, failure
to comply with the Court’s Orders, and failure to simply make a
concerted effort to obtain and disclose responsive documents at
this stage in the proceedings warrants the imposition of
sanctions. Throughout the course of jurisdictional discovery in
this matter, plaintiff has repeatedly represented that all
responsive documents had been produced, when in fact, complete
searches were not conducted. Defendants’ efforts at obtaining
jurisdictional discovery have been repeatedly frustrated by
plaintiff’s counsel’s contradictory representations, late and
incomplete productions, and failure to oversee the searches and
production of discovery.
The Court finds that defendants are entitled to costs and
fees as a sanction for plaintiff’s conduct. Counsel for the
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defendants shall each file an affidavit of fees and costs with
the Court, on or before November 4, 2016, showing the costs and
fees incurred in connection with the filing of all notices and
motions related to the instant discovery dispute, as well as the
attendance at and participation in all court proceedings
necessitated by plaintiff’s conduct.
The Court also finds that it is appropriate, as a
deterrent and an incentive, to impose additional monetary
sanctions for each day that plaintiff’s production of items in
the custody of third parties continues to be deficient.
Accordingly, commencing October 27, 2016, for each business day
that the plaintiff fails to produce either the materials sought
or a certification that such materials are no longer in
existence, plaintiff will be sanctioned $150.4 It is the Court’s
hope that this will encourage plaintiff to make a more concerted
effort to provide the defendants with all responsive records
currently in the possession of third parties. When plaintiff is
confident that production has been completed in accordance with
the Court’s Orders, plaintiff shall file a status report that
contains, as exhibits, copies of the requests made, a
Plaintiff’s Certification states that account information has
been requested for the following institutions and companies:
Citibank; Capital One; ABN Amro; Peoples’ United Bank; Chase
Card Services; Bank of America; Discover; Paypal; and the IRS.
See Doc. #190 at 3. The legal file from Attorney Musilli – or a
certification that no records exist – is also outstanding.
4
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description of the efforts conducted to obtain the records, and
a sworn certification, executed by both counsel and plaintiff
personally, that all responsive records received have been
provided to the defendants.
This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 24th day of
October, 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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