Oleg Cassini, Inc. v. Electrolux Home Products, Inc.

Filing 48

MEMORANDUM AND ORDER granting in part 43 Motion for Discovery. Oleg Cassini's motion for sanctions, or in the alternative to compel (Docket no. 43) is granted to the extent that it shall be awarded costs, including attorneys' fees, incurr ed in connection with this motion. To facilitate the calculation, Oleg Cassini shall produce documentation supporting the expenses and attorneys' fees within one week of the date of this order. (Signed by Magistrate Judge James C. Francis on 6/19/2013) Copies Mailed By Chambers. (lmb)

UNITED STATES DISTRICT COURT
(ECF)
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
OLEG CASSINI, INC.
: 11 Civ. 1237 (LGS) (JCF)
:
Plaintiff,
:
MEMORANDUM
:
AND ORDER
:
- against :
:
ELECTROLUX HOME PRODUCTS, INC.,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
In this action, Oleg Cassini, Inc. (“Oleg Cassini”) alleges
that in 2008 a fire at its property started when a dryer designed
and manufactured by Electrolux Home Products, Inc. (“Electrolux”)
malfunctioned.

Consequently, the plaintiff asserts various claims

for products liability, breach of warranty, and violation of the
New York consumer protection laws.

Oleg Cassini now moves for

sanctions against Electrolux, contending that the defendant has
failed to produce relevant discovery materials and disobeyed a
previous discovery order.

In the alternative, Oleg Cassini asks

for an order compelling production of the missing materials.

For

the reasons set forth below, the plaintiff’s motion is granted in
part.
Background
On August 3, 2008, a fire caused significant damage to several
rooms of the plaintiff’s property.

(Complaint (“Compl.”), ¶¶ 15,

18). The plaintiff alleges that the fire originated from an underthe-counter dryer designed, manufactured, and assembled by the

1

defendant (the “Product”).

(Compl., ¶¶ 11, 15).

The plaintiff

further claims that the Product was dangerous and defective and
that the defendant failed to provide timely and adequate warning of
the dangers associated with it.
Resolving

an

earlier

(Compl., ¶¶ 16, 26).

discovery

dispute,

I

denied

the

plaintiff’s motion to compel production of “information about
[dryer] models other than the model involved in the 2008 fire”
without prejudice to the plaintiff’s future demonstration “that
other models share pertinent characteristics with the Product,” and
suggested that “[s]uch a showing could [] be[] made . . . through
an affidavit of an expert in mechanical engineering.” Oleg Cassini
v. Electrolux Home Products, Inc., No. 11 Civ. 1237, 2013 WL
466198, at *3 (S.D.N.Y. Feb. 7, 2013) (the “February 7 Order”).

I

further required the defendant to provide the identity of persons
with knowledge of its sales, revenues, and profits from the sale of
the model from 2000 until the present, subject to the same caveat
noted above. Id.

In addition, I granted the plaintiff’s motion to

compel interrogatory responses and production of documents “related
to prior accidents, complaints, and litigation to the extent that
they

relate

to

fires

caused

by

under-the-counter

dryers

manufactured by the defendant,” id., and required production of the
reports of fire investigators Tom Bajzek, Raymond Negron, and
Jonathan P. Debrow or submission of an affidavit from the defendant
“explaining why [such reports] are not in its possession,” id. at
*4.
Purporting to comply with the February 7 Order, Electrolux
2

provided

supplemental

responses,

including

approximately

300

documents and an affidavit asserting that no reports or other
documents by Mr. Bajzek, Mr. Negron, or Mr. Debrow existed.
(Declaration of Nicholas A. Vytell dated May 29, 2013 (“1st Vytell
Decl.”),

¶

7;

Defendant’s

Responses

to

Plaintiff’s

Discovery

Demands dated Feb. 28, 2013, attached as part of Exh. B to 1st
Vytell Decl.; Affidavit of Ellen H. Grepier dated Feb. 28, 2013
“Grepier Aff.”), attached as part of Exh. B to 1st Vytell Decl.).
After reviewing Electrolux’s supplemental production, Oleg
Cassini

identified

“a

number

of

other

actions

[against

the

defendants] involving dryer fires” that had not been disclosed,
including Donegal Mutual Insurance Co. a/s/o Vanessa Schantz v.
Electrolux North America, No. 1:08–cv–2171 (M.D. Pa. Dec. 3, 2008)
(the “Schantz Action”).

(1st Vytell Decl., ¶ 9).

Oleg Cassini

served a subpoena on counsel for the plaintiff in the Schantz
action seeking “all discovery demands and responses, expert reports
and disclosures, and deposition transcripts” from the case.
(Subpoena dated March 28, 2013, attached as part of Exh. C to 1st
Vytell Decl.).

Electrolux moved to quash, but ultimately agreed

that it would produce all of the documents from the Schantz action
and withdraw its motion to quash if the subpoena was withdrawn.
(E-mail chain of April 25, 2013 (“April 25 E-mail Chain”), attached
as Exh. G to 1st Vytell Decl.; Memo. Endorsement dated April 29,
2013).
Meanwhile, the plaintiff procured the report of engineer John
J. Lentini, which outlined specific aspects of the Product that he
3

believed contributed to the fire, and provided it to the defendant
along with a letter complaining about deficiencies in Electrolux’s
supplemental production. (Letter of Nicholas A. Vytell dated April
12, 2013 (“Vytell Letter”), attached as Exh. E to 1st Vytell Decl.;
Declaration of John J. Lentini dated April 12, 2013 (“Lentini
Decl.”), attached to Vytell Letter). Soon thereafter, Oleg Cassini
propounded its Third Set of Interrogatories and Third Requests for
Production of Documents, which were “focused on discovery of the
particular issues identified” in the Lentini Declaration.

(1st

Vytell Decl., ¶ 14; Plaintiff, Oleg Cassini, Inc.’s, Third Set of
Interrogatories to Defendant, attached as part of Exh. F to 1st
Vytell Decl.; Plaintiff, Oleg Cassini, Inc.’s, Third Request for
Production of Documents,
Decl.).

attached as part of Exh. F to 1st Vytell

I entered a protective order governing the handling of

confidential

materials

on

May

13,

2013.

(Stipulation

and

Protective Order dated May 13, 2013).
Electrolux produced no further documents in May.

On May 29,

2013, Oleg Cassini filed this motion seeking sanctions against
Electrolux, arguing that the defendant had (1) “failed entirely to
respond” to the Third Set of Interrogatories and Third Request for
Production

of

Documents

(Memorandum

of

Law

in

Support

of

Plaintiff’s Motion for Sanctions or, in the Alternative to Compel
Discovery (“Pl. Memo.”) at 3); (2) “reneged on th[e] express
agreement” to produce documents from the Schantz action (Pl. Memo.
at 3); (3) “made minimal effort to comply” with the February 7
Order (Pl. Memo. at 4); and (4) “failed to provide any discovery
4

related to other electric dryer models with similar characteristics
and/or components identified” in the Lentini Declaration (Pl. Memo.
at 4).
Electrolux’s opposition was due on June 5, 2013. (Declaration
of Nicholas A. Vytell dated June 10, 2013 (“2nd Vytell Decl.”), ¶
3); Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York 6.1.
filed.

No opposition was

Instead, on June 6, 2013, the plaintiff received from

Electrolux a hard drive containing approximately 162,000 documents,
indexed into fifteen “general categories,” accompanied by a letter
dated June 3, 2013, asking Oleg Cassini to withdraw this motion in
light of the “comprehensive disclosure[] and the effort undertaken
to compile and produce” the documents. (2nd Vytell Decl., ¶¶ 4, 9;
Letter from John P. Freedenberg dated June 3, 2013, attached as
Exh. A to 2nd Vytell Decl.).

On June 10, 2013, Oleg Cassini filed

a declaration of counsel charging that the production was still
incomplete, noting that, although it had not reviewed all of the
documents recently produced, Electrolux had not provided written
responses to the Third Set of Interrogatories or Third Request for
Production of Documents, and “despite numerous assurances, . . .
ha[d] not produced electronic copies of the photographs from the
scene of the fire.”
Electrolux

(2nd Vytell Decl., ¶ 7).

responded

to

plaintiff’s

counsel’s

second

declaration on June 14, 2013, asserting that its June 3, 2013,
production included (1) “readily available claim files for electric
free-standing dryers, which are responsive to the first set of
5

requests for production” in light of the Lentini Declaration; (2)
the Schantz documents; and (3) “documents responsive to [the]
[p]laintiff’s third set of requests for production.”

(Electrolux

Home Products, Inc.’s Response to Plaintiff’s Motion for Sanctions
(“Def. Memo.”) at 8).

Subsequent to the June 3 production,

Electrolux reportedly “produced the remainder of the responsive
documents and the written responses to [the] [p]laintiff’s third
set of interrogatories and requests for production.”

(Def. Memo.

at 8).
Oleg Cassini seeks three alternative types of sanctions for
discovery abuses:
(1) a terminating sanction, striking Electrolux’s answer
(1st Vytell Decl., ¶¶ 26-29; 2nd Vytell Decl., ¶ 11);
(2) entry of an order “deeming it established that []
there were numerous other instances in which electric
dryers manufactured by [Electrolux] malfunctioned due to
a failure of the rear drum bearing assembly[,] [that]
these failures resulted in fires and/or a significant
hazard of fire[,] and [] [that Electrolux] was aware of
this malfunction and the risks presented at the time it
sold the dryer at issue to [Oleg Cassini]” (1st Vytell
Decl., ¶ 26; 2nd Vytell Decl., ¶ 12); or
(3) an award of monetary sanctions against Electrolux in
the amount of $15,500, including attorneys’ fees, to
cover the costs of reviewing the recently produced
documents, and an additional $5,400 in attorneys’ fees
incurred in making this motion (2nd Vytell Decl., ¶ 13).
In

addition,

Oleg

Cassini

asks

that,

if

Electrolux’s

recent

discovery is allowed, I extend the fact discovery deadline from
July 1, 2013, to September 1, 2013.

(2nd Vytell Decl., ¶ 13).

Discussion
A.

Legal Standards

“Provided that there is a clearly articulated order of the
6

court requiring specific discovery,” Rule 37(b) of the Federal
Rules of Civil Procedure gives district courts authority to impose
sanctions for noncompliance with such an order.

Daval Steel

Products, a Division of Francosteel Corp. v. M/V Fakredine, 951
F.2d 1357, 1363 (2d Cir. 1991). The party requesting sanctions has
the

initial

burden

insufficient.

of

demonstrating

that

the

production

is

See, e.g., Benitez v. Straley, No. 01 Civ. 0181,

2008 WL 400894, at *1 (S.D.N.Y. Feb. 14, 2008) (denying sanctions
because the movant “had not met his burden of explaining why the
discovery provided . . . was insufficient”).

However, once a

party’s disobedience is established, the court has broad discretion
to

impose

sanctions

tailored

to

the

offensive

conduct.

Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135, 140
(2d Cir. 2007).

These can include deeming certain disputed

questions of fact as established, prohibiting the introduction of
certain evidence, and outright dismissal.

Cine Forty-Second

Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d
1062,

1066

sanction,

(2d

Cir.

courts

1979).

consider

In
“‘(1)

determining
the

the

appropriate

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,’” Agiwal v. Mid
Island Mortgage Corp., 555 F.3d 298, 302-03 (2d Cir. 2009) (second
alteration in original) (quoting Nieves v. City of New York, 208
F.R.D. 531, 535 (S.D.N.Y. 2002)), as well as the extent to which
7

the prevailing party has been and will be prejudiced by the
defaulting

party’s

noncompliance,

see

Anthropologie,

Inc.

v.

Forever 21, Inc., No. 07 Civ. 7873, 2009 WL 690126, at *3 (S.D.N.Y.
March 13, 2009).
the

opposing

cooperate.”
1066.

“The mildest [sanction] is an order to reimburse

party

for

expenses

caused

by

the

failure

to

Cine Forty-Second Street Theatre Corp., 602 F.2d at

This sanction must be imposed unless the noncompliant party

shows that its failure was substantially justified or that an award
of expenses would be unjust.

Fed. R. Civ. Proc. 37(b)(2)(C);

Mugavero v. Arms Acres, Inc., 680 F. Supp. 2d 544, 574 (S.D.N.Y.
2010).
In addition, Rule 37(a) requires that, when a motion to compel
is granted or disclosure or discovery is provided after such a
motion

is

filed,

the

court

order

the

party

“whose

conduct

necessitated the motion,” its attorney, or both “to pay the
movant’s

reasonable

expenses

incurred

in

making

the

motion,

including attorney’s fees,” unless the conduct was substantially
justified

or

the

award

would

be

unjust.

Fed.

R.

Civ.

P.

37(a)(5)(A); Underdog Trucking, LLC v. Verizon Services Corp., 273
F.R.D. 372, 377 (S.D.N.Y. 2011).
B.

Motion to Compel

Electrolux

represents

that

it

has

produced

all

relevant

documents and provided written responses to the plaintiff’s Third
Set

of

Interrogatories

and

Third

Documents. (Def. Memo. at 8, 10).
is

moot

unless

and

until

Oleg
8

Request

for

Production

of

Therefore, the motion to compel
Cassini

identifies

specific

shortcomings.
C.

Motion for Sanctions

Although Electrolux has completed its production of documents
and provided written responses to the plaintiff’s interrogatories
and requests for production, its responses were untimely and
occurred only after Oleg Cassini brought this motion. In addition,
Electrolux did not comply fully with the February 7 Order.
1.

Interrogatories and Requests for Production

Oleg Cassini propounded its Third Set of Interrogatories and
Third Request for Production of Documents on April 16, 2013.
(Letter of Nicholas A. Vytell dated April 16, 2013, attached as
part of Exh. F to 1st Vytell Decl.).

Pursuant to Rules 33(b)(2)

and 34(b)(2)(A), Electrolux had 30 days to respond.
responses were not provided until early June.

However,

(Def. Memo. at 8,

10).
2.

Documents from Schantz Action

By April 25, 2013, the defendant had agreed to produce these
documents,

and

a

protective

order

governing

the

handling

confidential material was entered on May 14, 2013.

of

However,

Electrolux failed to produce these documents until June 3, 2013,
after the plaintiff had filed this motion.
3.

Compliance with February 7 Order

Plaintiff’s counsel’s initial declaration in support of its
motion asserts that Electrolux had not complied with the February
7 Order because it had (1) failed to provide any discovery related
to the inspections of Mr. Bajzek, Mr. Negron, and Mr. Derow, (2)
9

failed to provide digital copies of photographs of the scene of the
2008 fire, and (3) failed to produce discovery related to underthe-counter dryer models other than the specific model involved in
the 2008 fire.

(1st Vytell Decl., ¶ 28).

As noted above, the February 7 Order required the defendant to
produce the reports of the three identified investigators or to
“submit

an

affidavit

possession.”

explaining

why

they

are

not

Oleg Cassini, 2013 WL 466198, at *4.

submitted such an affidavit on February 28, 2013.

in

its

Electrolux

(Grepier Aff.).

The February 7 Order ordered production of the photographs
Oleg Cassini, 2013 WL 466198, at

taken of the scene of the fire,

*4, which the defendant produced (Lentini Decl., ¶ 6).

The fact

that they were not produced in digital form -- the form apparently
preferred by Oleg Cassini -- does not mean that Electrolux failed
to comply with the order.
Finally,

the

February

7

Order

charged

Electrolux

with

production of information about prior accidents, complaints, and
litigation related to fires caused by under-the-counter dryers
manufactured by the defendant other than the model at issue in this
case.

Oleg

Cassini,

2013

WL

466198,

at

*3.

Electrolux’s

submission demonstrates that it does not understand what the
February 7 Order required.

Repeatedly, it asserts that the

February 7 Order “compell[ed] discovery limited to the dryer model
at issue.”

(Def. Memo. at 1-2, 5, 6, 9-10).

While it is correct

that, as a general matter, the February 7 Order did not compel
discovery of material related to all other dryer models that had
10

experienced fires, that order made it equally clear that “the
defendant shall produce the requested information related to prior
accidents, complaints, and litigation to the extent that they
relate to fires caused by under-the-counter dryers manufactures by
the defendant.”

Oleg Cassini, 2013 WL 466198, at *3 (emphasis

added).

This directive was not “limited to the dryer model at

issue.”

Thus, Electrolux’s initial production in response to the

February 7 Order was deficient.1
4.

Sanctions

Because

Electrolux

did

not

provide

written

responses

or

produce requested documents until after this motion was filed, I am
required to grant Oleg Cassini the reasonable expenses it incurred
in making this motion, including attorneys’ fees, unless Electrolux
can demonstrate that its conduct was substantially justified or
other circumstances make the award of expenses unjust.
Civ. P. 37(a)(5)(A).

Fed. R.

The defendant has not done so.

Electrolux provides no reason for its delayed responses to the

1

To the extent Oleg Cassini believes that failure to produce
discovery related to the Lentini Declaration is a violation of the
February 7 Order, it is mistaken. The February 7 Order denied Oleg
Cassini’s motion to compel discovery regarding other dryer models
that had experienced fires because it had not submitted evidence
that other dryer models manufactured by Electrolux shared similar
characteristics or components with the dryer model involved in the
2008 fire. Oleg Cassini, 2013 WL 466198, at *3. I suggested that
such evidence could be provided “through an affidavit of an expert
in mechanical engineering.” Id. I did not order Electrolux to
produce discovery requested in relation to such a hypothetical
affidavit.
To be sure, Oleg Cassini procured the Lentini
Declaration in response to the February 7 Order’s suggestion, but
that does not mean that responses related to the Lentini
Declaration should be incorporated into the relief directed by the
February 7 Order.
11

Third Set of Interrogatories and Third Request for Production of
Documents.

As to the production of documents in response to the

request for production, Electrolux’s explanation boils down to the
excuse that there were over 160,000 documents and that they were
produced “about two weeks after the entry of the [protective]
order.”

(Def. Memo. at 7-8, 10).

However, Electrolux admits that

it did not even begin “gathering, processing and bates-labeling
these document” until after the protective order was entered.
(Def. Memo. at 7).

It does not explain why collection and

preparation of these documents was not begun sooner -- for example,
at the time the requests for production were served on April 16,
2013, or when the parties reached an agreement regarding production
of the Schantz documents on April 25, 2013.

Electrolux has not

justified its untimely production.
Furthermore, Electrolux failed to timely produce information
regarding prior accidents, complaints, and litigation related to
fires

caused

by

under-the-counter

dryers

manufactured

by

the

defendant other than the model at issue in this case, which is a
violation of the February 7 Order.

Rule 37(b)(2) contemplates a

similar monetary sanction, subject to the same exceptions, as Rule
37(a)(5)(A).

Fed.

R.

Civ.

P.

37(b)(2)(C).

Electrolux’s

explanation -- that the Februray 7 Order “compell[ed] discovery
limited to the dryer model at issue” (Def. Memo. at 1-2) -- is
incorrect and is not substantial justification for its failure.
The plaintiff asserts that the costs associated with bringing
this motion amount to $5,400.

(2nd Vytell Decl., ¶ 13).
12

However,

it provides no supporting documentation that would allow me to
determine whether such expenses are reasonable.

Therefore, the

plaintiff must provide documentation, including contemporaneous
time records, to support its claimed expenses within one week of
the date of this order.
Rule

37(b)(2)(A)

allows

the

imposition

of

other,

more

draconian sanctions for failure to comply with a court order.
However, further sanctions -- such as the costs of processing and
reviewing the recently produced documents, deeming certain facts
established, or striking Electrolux’s answer -- are not warranted
at this time.

First, there has been no showing that Electrolux’s

failure to comply with the February 7 Order was willful or in bad
faith.

Although one section of that order required discovery

pertaining to under-the-counter dryers other than the one at issue,
a different section limited certain discovery to that pertaining
only

to

the

Product.

As

I

have

noted,

Electrolux’s

misunderstanding was not substantially justified -- a more careful
reading of the order would have corrected it -- but there is no
evidence that it was willful. Oleg Cassini asserts that Electrolux
“has engaged in similar tactics in other actions” (1st Vytell
Decl., ¶ 2), but provides no support for this statement. Moreover,
Electrolux had not previously been warned of the consequences of
noncompliance.

Additionally, I find that the monetary sanctions I

am imposing, although not large, will deter similar conduct by
Electrolux in the future.
The plaintiff’s request for an extension of the fact discovery
13

deadline is denied.

The problem Oleg Cassini complains of -- the

expedited review of the produced documents -- is partly of its own
making.

The plaintiff did not serve its Third Requests for

Production of Documents until April 16, 2013 (1st Vytell Decl., ¶
14). At the time they were served, the deadline for fact discovery
was May 17, 2013. (Revised Scheduling Order dated March 4, 2013).
Accordingly, Electrolux’s responses were not due until one day
before the close of discovery.

Fed. R. Civ. P. 34(b)(2)(A).

To be

sure, the parties requested and received a third (and final)
extension of the fact discovery deadline to July 1, 2013 (Revised
Scheduling Order dated May 13, 2013); however, there was no
guarantee that the request would be granted, see Soroof Trading
Development Corp. v. GE Microgen, Inc., 283 F.R.D. 142, 148 n.4
(S.D.N.Y. 2012) (noting court’s interest in ensuring that parties
abide by deadlines it sets).

In any case, Oleg Cassini is now

apparently in possession of all relevant discovery materials, the
vast majority of which it received on June 6, 2013, weeks before
the scheduled close of fact discovery.

Given the length of time

this action has been pending, it is not appropriate to extend, yet
again, the

discovery schedule.

Conclusion
Oleg Cassini’s motion for sanctions, or in the alternative to
compel (Docket no. 43) is granted to the extent that it shall be
awarded costs, including attorneys’ fees, incurred in connection
with this motion.

To facilitate the calculation, Oleg Cassini

shall produce documentation supporting the expenses and attorneys’
14

fees within one week of the date of this order.
SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
June 19, 2013

Copies mailed this date:
Timothy B. Parlin, Esq.
Nicholas A. Vytell, Esq.
Carroll, McNulty & Kull L.L.C.
120 Mountain View Boulevard
Basking Ridge, NJ 07920
Christopher P. Kelly, Esq.
Reppert Kelly & Satriale, LLC
120 Mountain View Boulevard
Basking Ridge, NJ 07920
John P. Freedenberg, Esq.
Goldberg Segella LLP
665 Main Street, Suite 400
Buffalo, New York 14203
Marianne Arcieri, Esq.
Goldberg Segalla LLP
11 Martine Avenue, Suite 750
White Plains, NY 16060

15