Residential Fences Corp. et al v. Rhino Blades Inc. et al

Filing 95

MEMORANDUM AND ORDER denying DE 78 Motion in limine. For the reasons set forth in the attached Memorandum and Order, Defendants' motion in limine is denied. Further, the parties will appear for a phone conference with the Court on 10/15/2020 at 11:30 a.m. to set a trial date. Parties should dial 1-877-336-1829 and enter access code 3002871# at the prompt. Ordered by Magistrate Judge Steven I. Locke on 9/22/2020. (Scrivani, Hillary)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RESIDENTIAL FENCES CORP. and LASER
INDUSTRIES INC.,
Plaintiffs,
-againstRHINO BLADES INC., TOMER YUZARY, and
ANGELA YUZARY,

MEMORANDUM AND
ORDER
14-cv-2552 (SIL)

Defendants.
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STEVEN I. LOCKE, United States Magistrate Judge:
Presently before the Court in this fraud, conversion, theft, unjust enrichment,
and demand for a full accounting action brought pursuant to this Court’s diversity
jurisdiction, is a letter motion in limine filed on October 31, 2019 by Defendants Rhino
Blades Inc. (“Rhino Blades”), Tomer Yuzary, and Angela Yuzary (“Defendants”). 1
Defendants seek an order barring Plaintiffs from using certain documents at trial
because they are “confident” that these documents were produced late in violation of
various court orders. See Motion in Limine (“Def. Ltr. Motion”), Docket Entry (“DE”)
[78], 1. 2 Specifically, Defendants assert that Plaintiffs failed to timely produce UPS
shipping labels for 2006, 2007, 2008 and part of 2009, as well as American Express
receipts from October 2012-September 2013. See id., 4. As a result, these documents

This action is proceeding before this Court for all purposes pursuant to the parties’ consent. See DE
[68]; 28 U.S.C. § 636.
1

Because Defendants did not include page numbers in this filing, the page citations are to the
document as it appears on ECF.

2

1

should be precluded at trial. 3 For the reasons set forth below, Defendants’ motion is
denied.
I.

Background
The following description of Plaintiffs’ claims are taken from the Proposed Pre-

Trial Order and are provided for context purposes only. According to Plaintiffs, from
around October 2004 to September 2013, Defendants devised a scheme to commit
fraud against them, including using the United States Postal Service and interstate
phone lines to communicate with the American Express Company and advise that
Defendants were authorized to charge and accept payment from an American
Express Credit Card Account that was owned by Plaintiffs. See Proposed Pre-Trial
Order, ¶¶4a., b. Plaintiffs claim that Defendants sold them steel cutting blades, 4 and
On October 16, 2019, which was prior to filing their motion on October 31, 2019, Defendants
filed a joint proposed pre-trial order containing their objections, which also included Plaintiffs’
proposed exhibit lists. See Proposed Order, DEs [77], [77-1]. On November 19, 2019, Plaintiffs filed
what appears to be a joint proposed pre-trial order containing both parties’ objections. See “Proposed
Pretrial Order by Laser Industries, Inc.,” (“Proposed Pre-Trial Order”), DE [80].
3

According to the Proposed Pre-Trial Order, Plaintiffs’ list of bates-stamped exhibits they seek
to admit, grouped by category of document, are: American Express Credit Card Records, Checks
Issued for Payments of Shipments, UPS Shipping Labels, Payment Summaries, Spreadsheets, a Blade
Weight/Price Chart, “Rhino Blades Invoice History,” “Overcharge Chart,” Email Print Outs Between
Parties, and a List of all bates numbers. See Exhibit Attachment C to Proposed PTO by Laser
Industries Inc., DE [83]. The Proposed Pre-Trial Order also cross references Plaintiffs’ “Memorandum
of Law Re: Pre-Trial Discovery/Evidence Issues” (“Plaintiffs’ Pre-Trial Memo” or “Pl. Pre-Trial Mem.”),
which Plaintiffs filed with the Court on April 24, 2017, and refiled on November 19, 2019, see DEs
[50], [81]. Plaintiffs state that their Pre-Trial Memo contains a list of the exhibits Plaintiffs seek to
admit in chronological order with bates-numbers. See Proposed Pre-Trial Order, 8. According to
Plaintiffs’ Pre-Trial Memo, they seek to admit: Spreadsheets, Invoice Lists, UPS Shipping Labels, and
American Express Payment Records for various time periods, each spanning about the length of a year
from November 2004 through September 13, 2013. See Pl. Pre-Trial Mem., 18-23.
According to the Complaint, Defendant Tomer M. Yuzary is the Vice President of Rhino Blades and
Defendant Angela Yuzary is the President of Rhino Blades and wife of Defendant Tomer M. Yuzary.
See Complaint, DE [1], ¶¶ 9-10. Plaintiffs allege that Defendant Angela Yuzary “actively participated”
in sending blades to Plaintiff Residential Fences Corp. and/or Plaintiff Laser Industries Inc. and “is
charged” by Rhino Blades “with producing records of sales and purchases from” Rhino Blades to
4

2

falsely advised American Express that they had shipped a certain amount of blades,
and that they had the authority to charge the account. Id. ¶ 4c. Plaintiffs allege that
Defendants knowingly billed the account for a larger number of blades than were
shipped, and that Defendants knew they did not have the authority or permission to
bill the credit card in the amounts charged. Id. ¶¶ 4d., e. Further, Plaintiffs claim
that at other times Defendants would ship a small number of blades through UPS
marked as “COD,” 5 resulting in a check being issued for the invoiced amount that
was for more than the value of the blades shipped. Id. ¶ 4g. As a result, Plaintiffs
allege that Defendants defrauded them in the sum of at least $1,800,000. Id. ¶¶ 4h.,
i. Defendants deny all liability. See id. ¶5.
II.

Procedural History
The Complaint was filed on April 22, 2014. See Complaint. Below is a portion

of the numerous discovery-related events that took place in this matter, which include
various adjournments and extensions of deadlines. See generally Docket.
The initial conference took place on October 7, 2014, wherein a scheduling
order was entered that required, inter alia, exchange of Rule 26(a)(1) disclosures and
service of first sets of interrogatories and document demands by October 28, 2014.
See DE [16]. Responses were due by November 28, 2014, depositions were to be
Plaintiffs. Id. ¶10. However, the Proposed Pre-Trial Order does not distinguish the roles of the three
defendants in the section containing the summary of Plaintiffs’ claims, and states that “the Defendants
acting together and individually conspired together” in “devising a scheme” to defraud Plaintiffs.
Proposed Pre-Trial Order, ¶4a. In the Proposed Pre-Trial Order, Defendants include as an affirmative
defense that Defendants Tomer A. Yuzary and Angela Yuzary were acting within the scope of their
employment as agents of Rhino Blades, and thus are not proper parties to the Complaint. Id. ¶5a.
Plaintiffs do not define “COD” in their submission, but the Court assumes they mean “cash on
delivery.”

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completed by April 15, 2015, and a pretrial conference was set for July 1, 2015. Id.
At a status conference on February 10, 2015, the deadline for exchange of written
discovery was extended to March 16, 2015. See DE [23].
At the conference on July 1, 2015, the Court amended the scheduling order to
allow Plaintiffs’ outstanding discovery responses to be served without objection on or
before July 31, 2015 and scheduled the pretrial conference for February 29, 2016. See
DEs [27], [28].
On July 31, 2015, Plaintiffs filed a letter motion requesting that the Court
extend the discovery date for completion of interrogatory responses and document
production. See DE [29].

The Court granted Plaintiffs’ request, allowing their

outstanding discovery responses to be served without objection on or before August
12, 2015.

See Electronic ORDER granting 29 Motion for Extension of time to

Complete Discovery, dated August 6, 2015.
At a March 23, 2016 conference, Plaintiffs’ oral motion for an extension of the
discovery deadline was granted. See DE [35]. This extension specifically required
Defendants to respond to Plaintiffs’ outstanding discovery requests on or before April
25, 2016 and permitted Plaintiffs to take two depositions on or before May 26, 2016.
Id.
After this conference, Defendants filed a motion to amend the Court’s previous
discovery order so that both Plaintiffs and Defendants would be allowed to take up to
two depositions on or before May 27, 2016, which was granted.

See Electronic

ORDER granting 37 Motion to Amend/Correct/Supplement, dated April 21, 2016.

4

On September 22, 2016, Plaintiffs filed a letter requesting an adjournment of
the following day’s scheduled pretrial conference because of a set of requests for
admissions that they served on Defendants. See DE [41]. In their request, Plaintiffs
asserted that the requests for admissions were focused on approximately 750
previously served documents, which were provided again with the request. See id.
According to Plaintiffs, the documents consisted of American Express Payment
receipts, checks drawn on Plaintiff Laser Industries Inc.’s checking account to pay for
packages sent by Defendants, UPS shipping labels, nine spreadsheets containing
“virtually” all the data in the documents, in addition to “arithmetic summaries” of
Plaintiff’s claims, and a “a few miscellaneous documents.” Id.
In response, Defendants wrote the Court stating that they do not object to
Plaintiffs’ request to adjourn the conference but do object to the “extremely late
discovery requests.” DE [42]. Included with Defendants’ submission was a proposed
pretrial order which they state was drafted with Plaintiffs’ input in late July before
the previously scheduled pretrial conference. Id., DE [42-1].
The Court granted the motion and adjourned the conference to October 24,
2016.

See Electronic ORDER granting 41 Motion to Adjourn Conference, dated

September 22, 2016.
On September 30, 2016, Defendants filed a motion seeking an order barring as
untimely Plaintiffs’ request for admissions.

See DE [43]. The Court granted

Defendants’ motion by way of an October 20, 2016 written order. See DE [44].

5

Next, at a conference on October 24, 2016, the Court ordered, inter alia, that
“any outstanding discovery issues must be fully briefed in advance” of the next
conference scheduled for November 28, 2016. See DE [45].
A joint motion to adjourn the November 28, 2016 conference was then filed and
granted, DE [46], followed by a series of joint requests for adjournments that were
also granted. See DEs [47]-[49]. Eventually, the conference was scheduled for May 1,
2017, and the Court advised the parties that “any and all discovery disputes not
raised in writing and filed on ECF on or before 4/25/2017 will be deemed waived.”
Electronic ORDER granting DE 49 , Motion to Adjourn Conference, dated March 30,
2017.
On April 24, 2017, Plaintiffs proceeded to file a series of documents, which
included Plaintiffs’ Pre-Trial Memo. See DEs [50]-[52].
On April 25, 2017, Plaintiffs filed an “Addendum to Memorandum of Law Re:
Pre-Trial Discovery/Evidence Issues,” (“Plaintiffs’ Pre-Trial Memo Addendum” or “Pl.
Pre-Trial Mem. Add.”), and then refiled the document, along with a letter asserting
that they needed to refile because they failed to attach exhibits. See DEs [53]-[55].
Among other topics addressed are the categories of evidence Plaintiffs seek to admit,
the basis for admission, and the proposed exhibits organized by year and bates-stamp
number. See DEs [50], [53], [54].
In their Pre-Trial Memo, Plaintiffs state that all the bates-stamped documents
had been previously provided to Defendants in September 2016 but were now
renumbered. Pl. Pre-Trial Mem., 3. However, Plaintiffs state within Plaintiffs’ Pre-

6

Trial Memo Addendum 6 that the newly numbered documents were provided in
September 2016. Pl. Pre-Trial Mem. Add., 2 (emphasis added). 7
On April 30, 2017, Defendants filed a letter responding to Plaintiffs’ April 24
and 25, 2017 filings. See Letter to Judge Locke Re: Full Objection to Plaintiffs’
Requests to Reopen Barred Discovery and Summary Documents, DE [57]. In the
letter, Defendants state that they do not object to the renumbering of previously
produced documents “so long as those documents were produced during the discovery
period and were not altered as part of this reproduction.” Id. at 2.
Presently before the Court is Defendants’ motion in limine to preclude
Plaintiffs’ use of purportedly late produced documents at trial.
III.

Discussion

A. Applicable Standards
Defendants do not cite to a single case or Federal Rule of Civil Procedure in
support of their motion.

Accordingly, the Court applies Federal Rule of Civil

Procedure (“Fed. R. Civ. P.”) 37(b)(2)(A)(ii), which provides in relevant part that “[i]f
a party . . . fails to obey an order to provide or permit discovery . . . the court where
the action is pending may issue further just orders” which includes “prohibiting the
disobedient party from supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A)(ii); see World
Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 158 (2d Cir.

Neither party referenced Plaintiffs’ Pre-Trial Memo Addendum in their submissions.
Because Plaintiffs did not include page numbers in this filing, the page citations are to the document
as it appears on ECF.

6
7

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2012) (“Federal Rule of Civil Procedure 37 governs the district court’s procedures for
enforcing discovery orders and imposing sanctions for misconduct.”). In seeking
sanctions under Fed. R. Civ. P. 37, Defendants bear the burden of demonstrating that
Plaintiffs failed to timely produce documents. See Oleg Cassini, Inc. v. Electrolux
Home Products, Inc., No. 11-cv-1237, 2013 WL 3056805, at *3 (S.D.N.Y. June 19,
2013) (citing Benitez v. Straley, No. 01-CV-0181, 2008 WL 400894, at *1 (S.D.N.Y.
Feb. 14, 2008)) (“The party requesting sanctions has the initial burden of
demonstrating that the production is insufficient.”); see also Markey v. Lapolla
Indus., Inc., No. 12-cv-4622, 2015 WL 5027522, at *16 (E.D.N.Y. Aug. 25,
2015), report and recommendation adopted, No. 12-cv-4622, 2016 WL 324968
(E.D.N.Y. Jan. 26, 2016) (quoting A.V.E.L.A., Inc. v. Estate of Monroe, No. 12–cv–
4828, 2014 WL 715540, at *4 (S.D.N.Y. Feb. 24, 2014), adhered to on
reconsideration, 2014 WL 1408488 (S.D.N.Y. Apr. 11, 2014)) (stating, in the context
of sanctions pursuant to Fed. R. Civ. P. 37(c), “[t]he party seeking Rule 37 sanctions
bears the burden of showing that the opposing party failed to timely disclose
information.”).
Several factors are used to evaluate a district court’s imposition of sanctions,
which include: “(1) the willfulness of the non-compliant party or the reason for
noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of
noncompliance, and (4) whether the non-compliant party had been warned of the
consequences

of

noncompliance.”

S. New England Tel.Co.

(SNET) v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (quoting
8

Agiwal v.

Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir.2009)). The district court has
“wide discretion” in imposing sanctions under Fed. R. Civ. P. 37. Shcherbakovskiy v.
Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir. 2007).
B. Defendants’ Motion
Defendants’ motion is denied for two reasons: (i) Defendants fail to sufficiently
establish that Plaintiffs’ documents were produced late in violation of court orders;
and (ii) Defendants fail to identify with sufficient specificity which documents they
seek to preclude.
i.

Failure to Establish Late Production

As set forth above, the Court extended the discovery deadline for Plaintiffs to
produce documents to August 12, 2015. Defendants’ four-page letter motion contains
a single heading, “Procedural/Discovery History.” See Def. Ltr. Motion. Yet, the first
two pages of the motion set out Defendants’ views of the sufficiency of Plaintiffs’
production prior to the extension of discovery deadlines, largely centered around
Plaintiffs’ Initial Disclosures and related correspondence from June 30, 2015. See
Def. Ltr. Motion, 1,2; Exs. B-F. Defendants point to paragraphs 6 and 7 of page 4 of
Plaintiffs’ Initial Disclosures, dated June 28, 2015. See Def. Ltr. Motion, 1-2; id. at
Ex. C.

Paragraph 6 of Plaintiffs’ Initial Disclosures state that the documents

provided include, inter alia, “[a]n invoice summary of all American Express credit
card charges and check charges as well as a copy of all American Express credit card
charges provided by American Express for the periods of 10/06-9/07; 10/07-9/08;
10/08-9/09; 10/09-9/10; 10/10-9/11; 10/11-9/12; 10/12-9/13 [this time period is without
9

American Express records but they will be provided] [Ex. 6]” (emphasis added). See
id., 4, ¶ 6. Paragraph 7 states “[c]opies of all UPS shipping labels showing all
shipments which were paid for by credit card for the year periods [sic] 2009; 2010;
2011; 2012; 2013 [Ex. 7] [Copies of shipping labels for the years 2006; 2007 and 2008n
[sic] are currently being sought and will be provided].” Def. Ltr. Motion, Ex. C, 4, ¶ 7
(emphasis added). Defendants assert that these paragraphs serve as an admission
that the disclosures were deficient and incomplete, as Plaintiffs were “still seeking
discovery in the form of documents and billings for a specific time frame.” Def. Ltr.
Motion, 2.

Although Defendants do not specify what about these paragraphs

demonstrates that the disclosures were incomplete, the Court assumes Defendants
are referring to the placement of the bracketed language after 10/12-9/13 in
Paragraph 6, and the placement of the bracketed language after 2013 for the UPS
shipping labels in Paragraph 7. In Plaintiffs’ Opposition, they assert regarding the
placement of the brackets for the American Express records: “I recollect that this
statement refers to the time period of Oct. 2004 to Sept 2006 [sic] and the reason
there were no American Express records for that time period was that the American
Express Account was not being used at that time. Otherwise an invoice summary
and copies of all AM Ex [sic] documents were provided. [The portion of that paragraph
that is in parenthesis should have been located after the first period described.] [sic]”
Pl. Opp., 7. Plaintiffs further state for the UPS shipping labels: “[t]hese documents
were provided and I believe that was done on July 1, 2015 at the court conference.”
Id. Both Parties point to a June 30, 2015 email that Plaintiffs sent Defendants and

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a June 30, 2015 letter Plaintiffs filed with the Court in support of their positions
regarding the sufficiency of Plaintiffs’ document production at this time. See Pl. Opp.,
7; Ex. 2 to Plaintiffs’ Opposition, DE [88-2]; Def. Ltr. Motion, 1-2; Exs. B, F to Def.
Ltr. Motion. 8 Further, Defendants assert that on July 1, 2015, Plaintiffs came to the
courthouse with documents that were “devoid of the necessary proofs for UPS
shipping labels for 2004 to 2008 (paragraph 7 of Exhibit C) and the American Express
documents (paragraph 6 of Exhibit C).” Def. Ltr. Motion, 2. Moreover, Defendants
argue that they possess “the original and first aforementioned production of
documents and will readily provide them for the court’s inspection,” but offer no
further details concerning the documents. Id.
Plaintiffs should have been able to point to precisely when they produced the
documents in their opposition. 9 However, Plaintiffs’ Initial Disclosures, the email,

8

In the email, Plaintiffs state that they sent “a copy of our Rule 26 discovery” the day before,
but that it “did not include a copy of ex 4 and ex 5 [sic],” which are a spreadsheet with “relevant data”
and a document explaining the spreadsheet. Def. Ltr. Motion, Ex. B. The email further states that
the submission includes all of the supporting documents consisting of UPS shipping labels for the year
2012, and that Plaintiffs will provide copies of the UPS shipping labels for the years 2009, 2010, 2011,
and 2013 at the next day’s Court appearance. Id. Finally, the email states that Plaintiffs will be
completing data entry into the spreadsheet by July 15 and will then provide Defendants a copy, and
that this “will complete all documentary discovery.” Id. In the letter, which appears to be in reference
to the email Plaintiffs sent Defendants, Plaintiffs state that, the day before, they forwarded “virtually
all discovery documents and witness list to Defendants,” they sent two additional exhibits by email,
and by the end of the day, they will have forwarded Plaintiffs’ Interrogatories. See DE [25]. Plaintiffs
further state that that “[t]here will remain some data entry” for the spreadsheet, which will be
forwarded to Defendants by the end of the day, and that “this submission will virtually complete the
providing of all discovery documents save for a small number of support documents to our spread sheet
and some additional data entries which will be completed by July 15, 2015. By that date, Plaintiffs
will have responded to Defendant’s interrogatories.” Id.
In Plaintiffs’ Opposition, they request that their newly numbered bates-stamped documents “be
permitted to be used at trial in their totality.” Pl. Opp., 19. To the extent that this is a request for
this Court to rule on the admissibility of that evidence at this juncture, the court declines to do so.
9

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and letter that Defendants point to do not serve as proof that the American Express
receipts and UPS shipping labels referenced were untimely produced. Neither does
Defendants’ contention that they possess the document production from July 1, 2015.
As set forth above, at the July 1, 2015 conference, the deadline for Plaintiffs to
produce discovery was extended to July 31, 2015, which was later extended again.
Thus, the bracketed language in Plaintiffs’ June 28, 2015 Initial Disclosures, and
June 30, 2015 correspondence, do not support this Court limiting the use of
documents on timeliness grounds.
Next, Defendants point to a March 22, 2016 proposed joint pre-trial order that
they assert they received from Plaintiffs, see Ex. H to Def. Ltr. Motion, and argue that
it shows that Plaintiffs had still not provided the necessary documents. See Def. Ltr.
Motion, 3. Although Defendants do not identify which page or paragraph they are
referring to in their exhibit, the Court assumes they are referring to Plaintiffs’ list of
exhibits to be offered into evidence which include, inter alia, the same exact bracketed
language from Plaintiffs’ Initial Disclosures at paragraph 6 and 7 as set forth above
stating “10/12-9/13 [this time period is without American Express records but they will
be provided]” and “[Copies of shipping labels for the years 2006; 2007 and 2008n [sic]
are currently being sought and will be provided].” See Ex. H to Def. Ltr. Motion, ¶ 15
f, g.
Plaintiffs argue that this is a “cut and paste” list from Plaintiffs’ Initial
Disclosures and reassert that they timely provided the documents. Pl. Opp., 13.
Defendants counter that “[t]his is not a typo mistake or a cut and past [sic] mistake,”

12

as

they’ve “reviewed [their] records, plaintiff’s [sic] submissions, emails,

correspondences, etc.” and they “reiterate that, even if plaintiff does complain or
provide some ‘proof’ of submission in or around this time, it is woefully late of the
July 1, 2015 order.” Def. Ltr. Motion, 3.
It is unclear to the Court why Defendants failed to provide any evidence
demonstrating when they received these documents, particularly if they were
“woefully late.” In any event, the Court again cannot conclude solely from this early
version of a proposed pre-trial order that Plaintiffs failed to timely provide documents
without additional information regarding which documents were received when.
Finally, Defendants assert that Plaintiffs’ Pre-Trial Memo, Ex. M to Def. Ltr.
Motion, DEs [50], [81], demonstrates that Plaintiffs did not provide their final
document production until September of 2016 and state “[o]ur office is in possession
of bates stamped documents. Which again, we can and will produce for the court’s
review [sic].” Def. Ltr. Motion, 3. In Plaintiffs’ Pre-Trial Memo, they state: “[a]ll of
the Bates stamped documents addressed in this memorandum are Bates Stamped
0000001-0000755. All have been have been [sic] previously provided to Defendants
although numbered slightly differently. They were previously numbered 1-773 and
were provided on or about Sept. 2016 in response to Defendants’ document demand.
The documents are identical except for perhaps a correction to an entry on a summary
spread sheet based on a review of the evidence.” Plaintiffs’ Pre-Trial Memo, 3
(emphasis added).

13

Plaintiffs counter that the September 2016 production was in reference to a rebates stamping of the documents, and that much of this production consisted of
spreadsheets and charts that were not discovery documents. Pl. Opp., 14. In support
of this assertion, Plaintiffs point to their September 22, 2016 letter to the Court. See
DE [41]. As set forth above, in the letter, Plaintiffs requested an adjournment of the
following day’s pretrial conference because of a set of requests for admissions that
they served on Defendants, and asserted that the requests for admissions were
focused on approximately 750 documents, copies of which had been previously
provided, and were provided again with the request. Id. Ultimately, Defendants filed
a motion seeking an order barring Plaintiff’s request as untimely, which was granted.
See DEs [43], [44].
Although neither party pointed to it in their submissions, the Court observes
that in Plaintiffs’ Pre-Trial Memo Addendum, they state that it was the newly
numbered documents that were provided to Defendants in September 2016, and that
Plaintiffs seek to have those documents substituted for the original production, but
that the actual documents are all the same. See Pl. Pre-Trial Memo Add. This
statement is consistent with Plaintiffs’ position that all responsive documents were
produced in a timely fashion.
In any event, Defendants conclude their motion by stating, “[a]s found for in
the aforementioned documents, almost seemingly admitted by plaintiff’s [sic] counsel,
plaintiff [sic] failed to timely provided [sic] the UPS shipping labels for 2006, 2007,
2008, and partially 2009. As provided for in Exhibits attached hereto, plaintiff [sic]

14

failed to provide the American Express receipts for October, 2012, to September, 2013
[sic].” Def. Ltr. Motion 4.
The Court disagrees. The exhibits to the motion do not show which documents
Defendants received and when they received them. Thus, Defendants have not met
their burden of demonstrating that Plaintiffs failed to adhere to the Court ordered
discovery deadlines sufficient to establish that preclusion is warranted. As a result,
the motion to prevent the use of these documents is denied. 10
ii.

Failure to Identify Which Documents Defendants Seek to Preclude

Alternatively, the Court denies the motion because Defendants fail to
sufficiently identify which specific documents they seek to preclude. Defendants state
that they object to any and all documents identified by Plaintiffs not timely produced
in discovery in a recent version of a proposed joint pretrial order. 11 Although the

In reaching this conclusion, the Court notes that Plaintiffs’ re-bates stamping and alleged late
production of documents appears to have taken place three years ago, and Defendants have suffered
no prejudice even if the production was late. See Oleg Cassini, Inc. v. Electrolux Home Products, Inc.,
No. 11-cv-1237, 2013 WL 3056805, at *3 (S.D.N.Y. June 19, 2013) (“Once a party’s disobedience is
established, the court has broad discretion to impose sanctions tailored to the offensive conduct.”)
(emphasis added) (citation omitted).
10

The Minute Order following the October 10, 2019 status conference in this matter instructed:
“Defendant will serve on Plaintiff its portion of the pretrial order on or before October 15, 2019. On or
before November 15, 2019, Plaintiff will file the completed proposed pretrial order containing all sides
reservations of objections indicated within the document.” See DE [76]. As described at supra note 1,
on October 16, 2019, Defendants filed a joint proposed pre-trial order containing their objections, which
also included Plaintiffs’ proposed exhibit lists as set forth above. See Proposed Order (“Defendants’
Proposed Pre-Trial Order” of “Def. Proposed Pre-Trial Order”), DEs [77], [77-1]. Defendants’ Proposed
Pre-Trial Order contained an objection: “Defendant objects to any and all documents identified by
Plaintiff [sic] not timely produced in discovery.” Def. Proposed Pre-Trial Order, 9. However, this
objection is absent from the Proposed Pre-Trial Order filed on November 19, 2019. The Court is unsure
of the reason for the discrepancy and will consider this objection to continue.
11

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documents at issue in this case are apparently all bates-stamped, Defendants expect
the Court to cross reference Plaintiffs’ Pre-Trial Memo and assume that the
categories of bates-stamped documents listed on Plaintiffs’ proposed exhibit list for
years other than “portions of 2009, to October, 2012” were untimely produced. The
Court declines to do so. As a result, even if Defendants had effectively demonstrated
that Plaintiffs failed to adhere to the Court’s discovery orders, the Court still cannot
discern from Defendants’ motion which specific bates-stamped documents
Defendants are seeking to exclude. Thus, due to the lack of clarity in the specific
relief sought, their motion in limine is denied on this ground as well. See Wood v.
Sempra Energy Trading Corp., No. 03-CV-986, 2005 WL 3465845, at *6, n.1 (D. Conn.
Dec. 9, 2005), aff’d, 225 F. App’x 38 (2d Cir. 2007) (denying a plaintiff’s request to
preclude evidence based upon the defendant’s failure to properly comply with
discovery where Plaintiff did not identify the particular exhibits she sought to
preclude in her motion in limine); see also Viada v. Osaka Health Spa, Inc., No. 04cv-2744, 2005 WL 3435111, at *1 (S.D.N.Y. Dec. 12, 2005) (denying motions in limine
for being too vague in that “they [did] not specify the writings or potential testimony
that the movants believe[d] should be excluded from the trial” and where the Court
could not determine “with any degree of certainty, whether the writings and
testimony sought to be excluded from the trial would be inadmissible under any of
the provisions of the Federal Rules of Evidence.”).

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IV.

Conclusion
For the reasons set forth above, Defendants’ motion in limine is denied. The

parties will appear on October 15, 2020 at 11:30 a.m. for a telephonic conference to
set a trial date.
SO ORDERED
Dated:

Central Islip, New York
September 22, 2020

/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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