Non-compliance with Discovery Orders is dangerous as it can ultimately lead to penalties and sanctions against non-compliant litigants and their attorneys. In practice, attorneys often intentionally disregard discovery demands served upon them despite the deadlines for responses required by the New York State Civil Practice Law and Rules (“CPLR”). Pursuant to CPLR § 3126 and CPLR § 3124, however, the Courts have discretion to severely penalize counsel representing parties who are not in compliance. As noted herein, such discovery defaults are professionally irresponsible, posing a threat to both the attorney and the client.
When a party fails to comply with a Discovery Demand or Discovery Order, the opposing party may file a Motion to compel the production of outstanding responses pursuant to CPLR § 3124 or a Motion seeking preclusive relief pursuant to CPLR § 3126.
A Motion filed seeking relief under CPLR § 3126 may result in an Order against the defaulting party, including such relief as preclusion of evidence or striking of the pleadings.[i] While the striking of a pleading is considered a drastic remedy, the Courts are not opposed to granting such relief when the non-compliant party demonstrates a willful or contemptuous pattern of refusing to comply with proper Demands and/or Discovery Orders. Without an excusable default plus a showing of merit, a non-compliant party may be risking their case when defaulting on discovery responses.
In 2014, the Court of Appeals expressed a firm commitment to ensuring that parties and their counsel abide by the Orders of the Courts: “Apart from CPLR 3126, a court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice.”[ii] Moreover, “[I]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.”[iii] Describing what is required for a party to adequately follow an Order, the Court directed that “Compliance requires a timely response and one that evidences a good faith effort to address the requests meaningfully,” and further noted that “[a] trial court has discretion to strike pleadings under CPLR 3126 when a party’s repeated noncompliance is ‘dilatory, evasive, obstructive, and ultimately contumacious.’”[iv] Clearly, the authority of the Court to provide relief in situations where parties fail to comply with Discovery Demands and Orders is broad.
The Appellate Division First Department has also sent clear that disregard of Discovery Orders and other misconduct in the discovery process will not be permitted and is ripe for sanctions. The First Department noted that a party was “inexcusably lax” in its approach to Discovery and “the cavalier attitude [of the party], resulting as it has in substantial and gratuitous delay and expense, should not escape adverse consequence,” and the Court therefore required that the opposing counsel be paid the sum of $10,000.00 in sanctions.[v] The Court then spoke directly to the trial Courts, taking the opportunity to “encourage the IAS courts to employ a more proactive approach in such circumstances; upon learning that a party has repeatedly failed to comply with discovery orders, they have an affirmative obligation to take such additional steps as are necessary to ensure future compliance.”[vi] Far from an aberration, this decision represents a trend among the Courts to grant and uphold on appeal such relief under CPLR §§ 3126 and 3124.[vii]
Defaults of Discovery Orders may also lead to a sanction being issued against the defaulting attorney by the Court. The Courts have held that if an award of sanctions is granted, those sanctions may be imposed against a party and/or counsel to a party, and may include actual costs, including attorneys’ fees or a pure sanction for another monetary amount.[viii] The Court may award costs and attorneys’ fees resulting from frivolous conduct.[ix] The Court may also impose financial sanctions upon a party or an attorney who engages in frivolous conduct. Frivolous conduct is defined to include conduct that “is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another…”[x] In numerous decisions, the Courts have determined that the failure to comply with Court Orders directing that discovery be provided warrants an award of sanctions, either against the non-compliant party or their legal counsel.[xi] When awarding sanctions due to non-compliance with discovery Orders, the Courts have noted that sanctions are warranted to deter dilatory behavior in future[xii] and to provide recompense to time expended by the movant to seek compliance.[xiii]
While compliance with Discovery Orders entered by the Courts is an inherent obligation of all attorneys, for the reasons set forth above, defaults of these Orders may be detrimental to a client’s case and result in sanctions against the non-compliant counsel and/or client. Accordingly, counsel should be guided by the words of Abraham Lincoln who commented, “The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day.”
By: James L. Hyer, Esq.
James L. Hyer, is a Partner with Bashian P.C.. Mr. Hyer is a member of the New York State Bar Association House of Delegates and is a member of the Board of Directors of the Westchester County Bar Association.
Mr. Hyer wishes to acknowledge the assistance of Caitlin Baranowski in the preparation of this article.
[i] See, CPLR § 3126.
[ii] See, CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307, (2014).
[iii] See, Kihl v. Pfeffer, 94 N.Y.2d 118, (1999).
[iv] See, CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307, (2014), quoting, Kihl v. Pfeffer, 94 N.Y.2d 118, (1999).
[v] See, Figdor v. City of New York, 823 N.Y.S.2d 385 (1st Dep’t 2006).
[vi] Id at 385
[vii] See, Roman v. City of New York, 832 N.Y.S.2d 528 (1st Dep’t 2007); Filatava v. Rome Realty Group LLC, 941 N.Y.S.2d 80, (1 Dept. 2012); Fish & Richardson, P.C. v. Schindler, 901 N.Y.S.2d 598, (1 Dept. 2010); Rodriguez v. United Bronx Parents, Inc., 895 N.Y.S.2d 57, (1 Dept. 2010); Frank Parlamis, Inc. v. Piccola Pizza Cafe-Times Square, Inc., 687 N.Y.S.2d 39., (1 Dept. 1999); Helms v. Gangemi, 696 N.Y.S.2d 441, (1 Dept. 1999)
[viii] See, 150 Centreville, LLC v. Lin Associates Architects, PC, 39 Misc.3d 513, 963 N.Y.S.2d 819, (Sup. Ct. 2013). See Also, Siegel, N.Y. Prac. § 414A (5th Ed.)
[ix] 22 NYCRR § 130–1.1(a).
[x] See, 22 NYCRR § 130–1.1(c).
[xi] See, Adzer v. Rudin Management Co., Inc., 856 N.Y.S.2d 674, (2nd Dept. 2008); Makris v. Westchester County, 800 N.Y.S.2d 759, (2 Dept. 2005); Taub v. Wulwick, 562 N.Y.S.2d 734, (2 Dept. 1990); River Park Associates v. Meyerbank Elec. Co., Inc., 497 N.Y.S.2d 762, (2 Dept. 1986)
[xii] See, Altu v. Clark, 798 N.Y.S.2d 775, (3 Dept. 2005)
[xiii] See, L & L Auto Distributors and Suppliers Inc. v. Auto Collection, Inc., 925 N.Y.S.2d 151, (2nd Dept. 2011); See Also, New v. Scores Entertainment, Inc., 679 N.Y.S.2d 382, (1 Dept. 1998); Davis v. City of New York, 613 N.Y.S.2d 898, (1 Dept. 1994)