What if the Other Side Doesn’t Respond to My Discovery Demands?

The general rule with respect to discovery is as follows: “Parties to civil litigations are granted broad rights to disclosure of all relevant and material matters as well as documentation that might lead to the discovery of admissible proof.” Montgomery v. Taylor, 275 A.D.2d 698, 713 N.Y.S.2d 188 (2d Dep’t 2000).  

The Civil Practice Law and Rules (rules governing procedure in NY state courts) provides that there must be full disclosure of all matters that are material and necessary in the prosecution or defense of an action. See CPLR §3101(a). 

The Court of Appeals has interpreted the “material and necessary” component of CPLR 3101(a) liberally “to require disclosure upon request of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.  

As the Courts have stated: “The test is one of usefulness and reason … to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable.” Allen v. Crowell–Collier Publ. Co., 288 N.Y.S.2d 449; see also Jones v. Beckford, 289 A.D.2d 26,27 (1st Dep’t 2001). 

Disclosure is not limited to evidence directly related to the issues in the pleadings.  Id.   The Court of Appeals’ interpretation of “material and necessary” in Allen has been understood “to mean nothing more or less than ‘relevant’ ” (Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3101:5).  

As such, in accordance with the statute, any party may demand disclosure of evidence or information leading to evidence relevant to the case without regard to the burden of proof.  See Weber v. Ryder TRS, Inc., 854 N.Y.S.2d 480 (2d Dep’t 2008); also see Northway Engineering Inc. v. Felix Industries Inc., 567 N.Y.S.2d 634 (1991).

Now that we’ve established a party’s broad discovery rights in a litigation, what if the other side doesn’t respond? Well according to CPLR§ 3124: “if 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.” 

This means that you can file a Motion to Compel the other side to respond to your discovery demands. Generally this requires an affirmation from the attorney regarding the things specifically being demanded, what the other side has failed to provide, why that information is relevant to the case, and the good faith efforts that your attorney has taken in order to resolve these discovery related issues.

If the other side continually, contumaciously, and repeatedly fails to respond to discovery demands or even court orders requiring further disclosure of documents or testimony, you have even more rights according to CPLR 3126:

“If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party’s control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order;  or

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses;  or

3. an order 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.

Now, a few words of caution and reality. First, discovery battles tend to be the biggest waste of time in my opinion. You can file a motion to compel (CPLR 3124) or event file a motion to strike (CPLR 3126), but more often than not Courts view these issues as a battle between two hostile parties or two whining attorneys who can’t seem to work together as adults. Second, some courts/judges will not even permit you to file a motion to compel (CPLR 3124) let alone a motion to strike (CPLR 3126) until you’ve had a conference with the Court to try to resolve the outstanding issues.

I’ve been before judges who have said on the record, that nothing pisses them off more than battles over simple discovery issues.

The important takeaway here is, work with your attorney to present all relevant information. Don’t get hung up on discovery battles. They tend to delay your case significantly. Be consistent and diligent throughout the discovery process it will help you streamline the litigation process overall.

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