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Default Judgment Entered As Sanction for Discovery Violations, Including ESI Spoliation

Posted on October 5th, 2015

In Herman v. Herman, 2015 NY Slip. Op. 31205(U) (N.Y.S.C., NY Co., 2015), a case involving the purchase of a trust’s interests in real property, the New York State Supreme Court considered the appropriate sanction for severe discovery violations, including willful document destruction in violation of a court order.

Early in the litigation, the parties had entered into a stipulation for the preservation of ESI. One of the defendants, Maurice Herman, swore in an affidavit that he had searched all email accounts in his possession and control. He also produced a privilege log that showed emails between himself and another defendant, Offit. Defendant Offit’s privilege log also initially listed those same emails but later in the litigation, Offit agreed to produce one of the emails. Herman continued to refuse to produce the email, and the court eventually discovered that he had actually destroyed the email in violation of the ESI stipulation. The court also learned that Herman had violated several of its express orders by failing to log certain items on a privilege log and had intentionally destroyed several wills after the court ordered him to produce them.

Given the gravity of the discovery violations, Plaintiff sought default judgment against Herman for the ESI spoliation. The court noted that striking a pleading is “an extreme, harsh remedy to be used with restraint and discretion.” Because the court found a pattern of willful and egregious refusal to comply with discovery orders and spoliation of evidence (which the court noted was “repeated, not isolated”), the court determined that lesser sanctions would be insufficient (especially given that the court had already sanctioned Herman before and that he continued to violate court orders despite the earlier sanctions). Accordingly, the court entered default judgment against Herman for the ESI spoliation and ordered that all his motions and pleadings be stricken.

ILS – Plaintiff Electronic Discovery Experts

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