AWARD LIMITED TO “ADDITIONAL DISCOVERY COSTS” INCURRED
Because it was found to have engaged in a willful failure to comply with its disclosure requirements, the New York County Supreme Court directed the plaintiff to “pay defendants’ discovery costs, including reasonable attorneys’ fees, in their entirety, for all discovery conducted thus far in the litigation, as well as all future discovery.”
On appeal, the Appellate Division, First Department, noted that the plaintiff had failed to produce some “17 undisclosed documents” earlier in the discovery process, and that that omission required the conduct of additional depositions – i.e., questioning under oath.
While the AD1 thought that “discovery sanctions” -- or penalties -- were appropriate in this instance, it was of the view that the court below had gone overboard by awarding “all” fees and future costs, and opted, in its discretion, to limit the defendant to the recovery of “those fees to be incurred ... in connection with the retaking of any depositions or further discovery necessitated as a result of plaintiffs' failure to produce the 17 undisclosed documents.”
Think they languished in that discovery?
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DECISION
Riverside Ctr. Site 5 Owner LLC v Lexington Ins. Co. (AD1)
Riverside Ctr. Site 5 Owner LLC v Lexington Ins. Co (New York County Supreme Court)