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Dismissal Sanction at Trial Backfires on Defendant (NY)

September 1, 2016

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All parties in civil suits in New York are obligated to provide relevant information—including documents, videos, and photographs—in response to demands for same. Parties that “willfully or contumaciously” fail to disclose this information are subject to sanction at the Court’s discretion. These sanctions may result in fines or exclusion of the evidence from use at trial, and can even result in the parties’ complaints or answers being stricken.
In <a href="">Fox v Grand Slam Banquet Hall </a>, the plaintiff allegedly tripped and fell on wires while attending a party at the defendant’s facility. During plaintiff’s cross-examination on the third day of trial, she admitted that she had just the prior day found a video of the party.  The video had been mislabeled and, consequently, never turned over to defendant in discovery. The plaintiff only provided the video to her attorney before testifying that day, but both the Court and defendant did not discover the video’s existence until during plaintiff’s testimony.
The plaintiff did not attempt to introduce the video into evidence and agreed to preclude its admission into evidence (despite the fact that its footage may have been beneficial to her case). She also agreed to strike all testimony about the video. The defendant requested that the presiding judge strike plaintiff’s complaint as a discovery sanction. The judge did so, and plaintiff appealed.
The First Department unanimously reversed the trial court’s ruling and ordered a retrial, holding that the trial court had abused its discretion when it dismissed the complaint for failure to disclose the video before trial. The Court held that the plaintiff’s failure to locate or disclose the video of the party did not appear sufficiently willful or contumacious. The Court was not persuaded that the failure to produce the video result in sufficient prejudice to defendant to warrant dismissal of the complaint, particularly in light of the fact that the video would not be introduced at trial. Furthermore, defendant’s discovery demands to plaintiff only requested she turn over photographs in her possession, there was no Court order during discovery requiring plaintiff to turn over video evidence, and there appeared to be confusion amongst the parties during discovery as to whether a video of the party even existed.
Under these circumstances, the Court reversed the dismissal. To mitigate prejudice to the defendant in a retrial, the Court granted the defendant an opportunity to conduct additional discovery and to depose the videographer and plaintiff.  However, critically, plaintiff may be permitted to introduce the video into evidence during the retrial.
This case serves as a reminder to serve broad discovery demands upon opposing counsel. It also serves as a warning to parties against requesting their opponents’ pleadings be stricken where merely excluding the evidence would sufficiently protect their interests. The consequences of a retrial with additional, admissible evidence may be severe.
Thanks to Peter Luccarelli for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.

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