Margel v. E.G.L. Gem Lab Ltd., Case No. 04-1514 (S.D.N.Y. May 29, 2008)
Margel v. E.G.L. Gem Lab Ltd., Case No. 04-1514 (S.D.N.Y. July 11, 2008)
Pointing to deposition testimony of plaintiff’s destruction of computers, defendants sought sanctions for the failure to produce the data that had been destroyed along with the computers. Magistrate Judge Henry Pitman declined the invitation, noting that defendants do not cite any document request that would be implicated by the testimony.
His analysis was instructive. “Under ordinary circumstances, a party’s good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production.” Slip Opinion at 7 (quoting Zervos v. S.S. Sam Houston, 79 F.R.D. 593, 595 (S.D.N.Y. 1978). In the face of this denial, the moving party must “make and adequate showing to overcome [the] assertion.” Id. (quoting Golden Trade S. R. L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7 (S.D.N.Y. 1992)). Defendants did not do this.
The court did not treat the question of overall relevance; apparently, it was not raised. Accordingly, the ultimate issue of preservation, i.e., was the data relevant, was not decided.
Observing that “[d]ocument production under the Federal Rules of Civil Procedure is intended to take place without judicial intervention,” the court was not so kind regarding plaintiff’s tardy production. The court had been required to intervene twice in earlier discovery disputes, which ultimately resulted in the plaintiff producing 800 additional documents, four times the original production. The court awarded attorney fees to the defendants for the fees incurred “in connection with their efforts to obtain plaintiff’s documents.”
Finally, the court ordered one of the defendants to produce the electronic data underlying a report. The court noted that: “information maintained in a database is necessarily in a form that is not identical to a report prepared on the basis of that data and should, therefore, ordinarily be produced.” Slip Opinion at 14.
In a surprising twist, defendants failed to meet the production schedule due to “personal emergencies.” After a telephone conference with counsel, the court gave defendants three days to begin production and one week to complete it. If they failed to meet this schedule, sanctions would be imposed at the rate of $100 per day for the first week, and doubling each week thereafter.