Discovery (or disclosure) in litigation, which is governed in New York State practice by Article 31 of the CPLR, is the mechanism by which litigants obtain facts and information from other parties and non-parties to support their claims and/or defenses and otherwise prepare for trial. This BLOG has previously addressed discovery issues. See, e.g., [here], [here], [here], [here], [here], [here], [here], [here], [here] and [here] and the BLOG articles hyperlinked therein.
CPLR 3101 provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” CPLR 3101(a). The Court of Appeals has interpreted the “material and necessary” requirement liberally to “require disclosure, upon request, of any facts bearing on the controversy which will assist [in] preparation for trial by sharpening the issues and reducing delay and prolixity.” Allen v. Crowell-Collier Publ’g Co., 21 N.Y.2d 403, 406 (1968). “The test is one of usefulness and reason.” Id. Thus, “if there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered evidence material . . . in the prosecution or defense and thus should be disclosed pursuant to CPLR 3101(a).” Lau v. Margaret E. Pescatore Parking, Inc., 105 A.D.3d 594, 595 (1st Dept. 2013) (quoting Allen, 21 N.Y.2d at 407) (internal quotation omitted).
When a litigant fails to comply with discovery demands or discovery related court orders, the CPLR provides remedies. For example, CPLR 3124 provides that when a “person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.”
Similarly, pursuant to CPLR 3126, when a party or its representative refuses to obey a discovery order or “willfully” fails to produce information that the court finds “ought to have been disclosed,” the court may, inter alia, issue an order: (1) deeming issues related to the requested information resolved in favor of the party obtaining the order; (2) prohibiting the recalcitrant party from “supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony … or from using certain witnesses”; or, (3) “striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.”
“Willful failure” to comply with disclosure obligations “may be established by repeated failure to comply with court orders directing disclosure, including court orders issued at conferences.” Shah v. Oral Cancer Prevention Int’l, Inc., 138 A.D.3d 722, 724 (2nd Dep’t 2016) (Citations omitted); see also Nationstar Mort., LLC v. Jackson, 192 A.D.3d 813, 815 (2nd Dep’t 2021). The extent of penalties issued under CPLR 3126 is “generally left to the court’s discretion.” Guardado v. K.B.G Commercial, Inc., 209 A.D.3d 721, 722 (2nd Dep’t 2022) (citations omitted).
In addition, the New York Administrative Code provides guidance on the procedures to be followed prior to seeking court intervention to resolve discovery disputes. See, e.g., 22 NYCRR 202.20-f. Further, a particular judge’s individual part rules may also provide related (and important) guidance.
On September 11, 2024, the Second Department, in Bayview Loan Servicing, LLC v. Evanson, a mortgage foreclosure action, addressed a motion to strike under CPLR 3126(3). There, the defendant served discovery demands on the plaintiff in a mortgage foreclosure action. The Plaintiff failed to respond. Three months later the defendant again served the demands; this time with a letter threatening to move to strike the lender’s complaint if responses were not served within ninety days. There was no indication that the defendant’s counsel made any effort to confer with the lender’s counsel to resolve the discovery dispute, nor did the defendant move to compel disclosure. Instead, the defendant moved to strike the lender’s complaint pursuant to CPLR 3126(3) because of the lender’s failure to respond to the discovery demands. The motion court denied the motion “on the ground that the defendant did not proceed ‘in conformity with’ 22 NYCRR 202.20-f.”
The Second Department affirmed and, in so doing, stated:
“To the maximum extent possible, discovery disputes should be resolved through informal procedures, such as conferences, as opposed to motion practice” (22 NYCRR 202.20-f[a]). All discovery motions must include “an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion” (id. § 202.7[a]; see Muchnik v Mendez Trucking, Inc., 212 AD3d 640, 641 [2nd Dep’t 2023]). “The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held” (22 NYCRR 202.7[c]; see Behar v Wiblishauser, 219 AD3d 793, 794 [2nd Dep’t 2023]). “Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7(c) warrants denial of the motion” (Behar v Wiblishauser, 219 AD3d at 794 [internal quotation marks omitted]). [Hyperlinks added.]
Further, citing to 22 NYCRR 202.20-f[b], the Court noted that, absent “exigent circumstances,” prior to seeking the involvement of the court to resolve a discovery dispute, counsel must confer and make a good faith effort to resolve the dispute and, if no resolution is reached, any resulting discovery motion must be accompanied by an affirmation of good faith containing required specifics as to the steps taken to resolve the dispute.
The Court found that the defendant failed to comply with 22 NYCRR 202.7 and 202.20-f(b) and that the defendant’s showing on the motion was wholly inadequate to warrant the extreme discovery sanction of striking the complaint.” (Citations omitted.)
