Attard v. The City of New York, Case No. 05-2129 (E.D. N.Y May 5, 2008)

In this case, the City of New York ignored discovery orders, failed to attend conferences with the court, and pretty much sped down every possible avenue that would lead to discovery sanctions. It worked. Magistrate Judge Robert M. Levy demonstrated admirable restraint as this saga unfolded, but the good Judge could take it no more and issued sanctions against the city that never sleeps.

The list of sanctionable offenses is impressive:

  1. Over a month after the discovery deadline expired, defendants filed a consent motion for an extension of time to complete discovery because defendants' counsel had "inadvertently neglected to properly calendar the discovery completion date." The court granted the motion and extended discovery until September 29, 2006. 
  2. On September 29, 2006, plaintiff filed a motion for an extension of time to complete discovery, asserting, inter alia, that defendants had failed to answer outstanding requests submitted that August. After holding a status conference with the parties, the court ordered defendants to respond to plaintiff's outstanding requests by November 30, 2006 and extended discovery to January 31, 2007. 
  3. On December 14, 2006, plaintiff moved the court to sanction defendants for not complying with the October 11, 2006 Order. Specifically, plaintiff noted that the case largely turns on expert analysis of statistical data that only defendants can provide. Despite the centrality of this information to plaintiff's argument, defendants' counsel nevertheless had informed plaintiff's counsel on December 9, 2006 that she again had forgotten the now-passed discovery deadlines and claimed that, regardless, she could not produce the data because the individual charged with compiling them was out sick. The court partially granted the Motion and ordered that "any and all properly served Requests for Admission for which defendant has not raised a timely objection are deemed ADMITTED."
  4. On February 27, 2007, the court extended the discovery deadline to June 30, 2007, scheduled an additional conference for March 30, 2007, and ordered the parties to confer to resolve any lingering disputes.
  5. On March 20, 2007, plaintiff submitted a letter to the court detailing opposing counsel's apparent inability – and later refusal – to discuss the outstanding discovery issues. Plaintiff simultaneously filed another letter along with a copy of defendants' discovery responses, in which defendants still refused to produce the materials that the court deemed admitted in the January 31, 2007 Order granting plaintiff's First Motion for Sanctions.
  6. Defendants' counsel did not respond to either letter, failed to appear at the March 30, 2007 discovery conference, and did not request an adjournment. Consequently, the court ordered defendants' counsel to explain her absence and to respond to plaintiff's March 20, 2007 letter no later than April 11, 2007. The court also ordered the parties to attend a status conference on April 12, 2007.
  7. Defendants' attorney did not attend the status conference due to an emergency and on April 19, 2007, notified plaintiff and the court that she required two additional weeks to update the court on any outstanding discovery issues. At the next conference, the court extended discovery to September 30, 2007.
  8. At a conference held with the parties on June 26, 2007, the Court ordered that by July 13, 2007, defendants must either produce the statistical information that plaintiff had requested in August 2006 or submit an affidavit explaining why they could not do so. Defendants did neither.
  9. The court held another conference on July 13, 2007, at which defendants were ordered to produce the statistical data no later than July 27, 2007.
  10. On October 31, 2007, plaintiff notified the Court that the statistical data defendants finally provided contained voluminous errors – such as listing many New York City public school teachers as over ninety years old or under eighteen – and that plaintiff would need a thirty-day extension to compensate for these deficiencies and produce an expert report.
  11. Nearly a month later, plaintiff informed the court that defendants' additional statistical productions contained the same pervasive errors and, as a result, the expert she had retained could not perform a proper analysis. Defendants' counsel agreed that the data produced were flawed. To date, defendants have not produced corrected data.
  12. Due to defendants' delays in fulfilling plaintiff's discovery requests and the deficiencies in defendants' productions, plaintiff filed a Second Motion for Sanctions on February 15, 2008. Defendants failed to serve plaintiff with a complete response, leading plaintiff to file a Third Motion for Sanctions on March 6, 2008. Defendants did not respond.

The court began its analysis noting that Rule 37 sanctions require a violation of a court order, which defendants have done “throughout discovery.” The really egregious violation, in the court’s eyes, was the repeated missing of deadlines to produce the statistical data that is central to plaintiff’s case in a useable form.

The court noted:

Factors to be considered in granting . . . sanction[s] as a result of failure to follow discovery order [sic] are '(a) willfulness or bad faith on the part of the noncompliant party; (b) the history, if any, of noncompliance; (c) the effectiveness of lesser sanctions; (d) whether the noncompliant party had been warned about the possibility of sanctions; (e) the client's complicity; and (f) prejudice to the moving party.'

Slip Opinion at 7 (quoting Fleming v. City of New York, Case No. 01 Civ. 8885, 2007 U.S. Dist. LEXIS 90114, 2007 WL 4302501, at *3 (S.D.N.Y. Dec. 7, 2007)).

Not surprisingly, plaintiff sought a litigation ending sanction. The court was not persuaded, correctly characterizing such a sanction as an extreme measure, not available without a demonstrative showing a bad faith on the part of defendants.

The court did, however, find that the defendants’ conduct “has unduly impaired the progression of discovery and prevented the timely and effective prosecution of the action.” Accordingly, the court ordered defendants to pay “all reasonable attorney's fees and costs that plaintiff has accrued in her efforts to enforce discovery,” and further ordered the defendants to pay the costs already expended in examining the faulty statistics, as well as the costs to examine the corrected statistics, assuming that defendants actually profer them at some point.

Read the opinion