The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.:
I. Factual and Procedural Background
This action relates to plaintiff's efforts to collect a money judgment in the amount of $ 60,267.25 entered on September 1, 1987 by Hon. Morris E. Lasker, District Judge for the Southern District of New York. Since that time, plaintiff has been unable to collect any money to satisfy that judgment. See Letter of Jacques Semmelman, Counsel to Plaintiff, to Court dated July 10, 1997. The underlying facts and lengthy procedural history of plaintiff's collection efforts leading to these motions have been set forth in the cases cited above, and familiarity with them is presumed. I will, however, briefly describe the events leading to plaintiff's current motions.
On October 8, 1996, plaintiff served Daniel and Norma Rhoades (collectively, the "Rhoades") with Requests for Production of Documents. On November 14, 1996, plaintiff served the Rhoades with Requests for Tax Authorizations so that plaintiff could obtain directly from the I.R.S. and the New York State Department of Taxation the tax returns for both the Rhoades and various affiliated corporations and partnerships for which the Rhoades signed the returns. The Rhoades failed to respond to either the October 8 Requests for Documents or the November 14 Requests for Tax Authorizations. See Affidavit of Jacques Semmelman ("Semmelman Aff."), dated May 20, 1997, at PP 7-8 and Exs. D, E.
On December 4, 1996, plaintiff's counsel took the deposition of Eric Oppenheimer ("Oppenheimer"), a friend and business associate of Daniel Rhoades. During the course of this deposition, Oppenheimer identified various documents that he believed to be in the custody of Daniel Rhoades. See id. at PP 9-10 and Exs. F at 117, 120-121, 125, 142-43, 151-52, 198, and 227-228). Based on this deposition, plaintiff served a Supplemental Request for Production on Daniel Rhoades on February 11, 1997. See id. at P 11, and Ex. G. Daniel Rhoades did not respond to the Supplemental Request, and neither Daniel or Norma Rhoades served objections to any of plaintiff's requests for documents at this time. ACLI wrote letters dated February 6, 1997 and March 14, 1997 to request compliance with its discovery demands. The Rhoades did not respond to either letter. See id. at PP 13-14.
On March 18, 1997, plaintiff wrote to the Court to request that an Order be issued directing the Rhoades to comply in all respects to all four discovery demands. In an Order dated March 26, 1997, I stated:
Pursuant to Local Civil Rule 3(f), plaintiff ACLI Government Securities, Inc. requests that defendants Daniel Rhoades and Norma Rhoades be ordered to produce documents relating to this case. In two letters dated October 8, 1996, and in letters dated November 14, 1996 and February 11, 1997 (all of which were docketed by the Court on March 26, 1997), plaintiff requested that defendants produce certain documents pursuant to Fed. R. Civ. P. 34 and this Court's rules. . . . As defendants have not objected to the requests within the time provided for in Rule 46(e)(1), any objections defendants might have raised to the requests are deemed to have been waived. See Local Civil Rule 46(e)(1). Accordingly, it is ORDERED that within ten days of receipt of this Order defendants will provide the Court and plaintiff with a sworn affidavit specifying which of the requested documents do not exist or; if they do exist, why defendants are unable to provide them; and it is further ORDERED that within ten days of receipt of this Order defendants will produce all other documents requested by plaintiff. A failure to comply with the terms of this Order may result in a finding of contempt.
See Semmelman Aff., Ex. H (emphasis added). Plaintiff faxed a copy of this Order to the Rhoades on March 28, 1997, and served another copy by first class mail on April 1, 1997. See id., Ex. I.
On April 3, 1997, plaintiff sent Daniel Rhoades a packet of tax authorization forms to facilitate his compliance with the March 26 Order. On April 11, 1997, Daniel Rhoades called plaintiff's counsel to request an extension of the deadline by which he and Norma Rhoades could comply with plaintiff's discovery demands. On April 14, 1997, plaintiff sent the Rhoades a letter confirming its agreement to an extension of the Rhoades' deadline to provide the Tax Authorizations by April 17, 1997 and the other documents by April 25, 1997. See Letter of Jacques Semmelman to the Court of April 21, 1997. Plaintiff received no documents from the Rhoades on those dates, and on April 21, 1997 requested by letter permission to move for contempt.
Although on April 28, 1997, Daniel Rhoades delivered materials to plaintiff's counsel, plaintiff now alleges this production of materials failed to comply with the March 26 Order. A pre-motion conference was scheduled for May 7, 1997. Despite repeated notifications by his adversary and the Court, the Rhoades
failed to appear or send counsel on that date. I therefore granted plaintiff leave to move for contempt.
1. Applicable Legal Standards
Daniel Rhoades has twice been held in civil contempt of court during the course of this litigation.
See Rhoades, 1995 U.S. Dist. LEXIS 18301, 1995 WL 731627 at *3; Semmelman Aff., Exs. A, B. Because I set forth the legal standards that apply to contempt motions on both occasions, I ...