That Another Party Has Produced Documents Does Not Excuse a Party From Producing the Same Documents if it Has Them

On December 7, 2020, Justice Knipel of the Kings County Commercial Division issued a decision in Azrak v. Carter Enters. LLC, 2020 NY Slip Op. 34036(U), holding that the fact that one party has produced certain documents does not excuse another party from producing the same documents, explaining:

CPLR 3124 provides that if a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article the party seeking disclosure may move to compel compliance or a response. In general, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties competing interests.

Here, Saul Wolf admits that there are documents in his possession, custody or control that are responsive to the Discovery Order, yet he refuses to produce such documents because he claims that they have already been produced by Carter Industries. To the extent Saul Wolf is in possession, custody or control of any documents subject to production under the Discovery Order, he is directed to produce such documents, regardless of the production previously made by Carter Industries.

(Internal citations omitted).

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called "discovery"). The scope of discovery in New York is broad. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).