Sanctions But Not Dismissal For Discovery Response “Embedded In Large Amounts Of Otherwise Irrelevant Documents”

The plaintiff in a legal malpractice case was sanctioned by the New York Appellate Division for the First Judicial Department for e-discovery misconduct.

The trial court dismissal with prejudice was too severe and was thus reversed

In this legal malpractice action, consolidated with two other actions, although plaintiffs produced responsive material, it was imbedded in large amounts of otherwise irrelevant documents. Over 30,000 documents were produced. The trial court then gave plaintiffs ample time and opportunity to further produce the documents in an electronically searchable format and to organize its responses in the form that defendant requested them. Plaintiffs failed to comply with the court’s directions. Under these circumstances, the trial court properly concluded that plaintiffs’ failure to comply with its orders was willful (Merrill Lynch, Pierce, Fenner & Smith v Global Strat Inc., 94 AD3d 491 [1st Dept 2012], mod 22 NY3d 877 [2013]). Given, however, plaintiffs’ partial compliance and the strong public policy in favor of disposing of cases on the merits, we find that dismissal of the action is too severe a sanction at this time and that a less severe sanction, of a monetary fine in the amount of $10,000 plus costs is appropriate, along with a final 30-day opportunity for plaintiffs to provide the discovery in the format ordered by the trial court on February 19, 2014.

(Mike Frisch)