compelling compliance, sanctioning the Pals and extending the time for
completion of discovery. See Id. In a January 31, 1996 order,
Administrative Law Judge Painter extended the discovery deadlines and
ordered Mr. Sinclair to initiate a telephone conference with respondents
counsel in order to resolve the discovery disputes. See Id. Based on
these evidentiary offerings, a factfinder could reasonably determine that
defendants failed to exercise reasonable care with respect to compliance
with discovery requests. Certainly, an attorney has a duty to fully
cooperate in the discovery process on behalf of the client. However,
without more, a jury would have no basis for finding that "but for" this
breach, plaintiffs would have won the CFTC case.
The failure to promptly respond to discovery requests did not have an
irreparable impact on the outcome of the case. The plaintiffs lost their
case because the Administrative Law Judge found that plaintiffs did not
prove their claims, holding that, "[c]omplainants have failed to establish
by the preponderance of the evidence that they sustained monetary damages
by reason of unlawful conduct on the part of respondents[,]" and finding
that. "Refco is clearly entitled to judgment for the debit balance[.]"
Defs.' Mem. Supp. Supp. 4. Ex. B. Defendants' timely response to
discovery requests would not have altered this outcome. Therefore, with
respect plaintiffs' complaint that defendants inadequately responded to
discovery, plaintiffs' malpractice claim fails as a matter of law because
they have not produced any evidence showing that the breach caused
plaintiffs to lose the CFTC case.
Plaintiffs next claim is that defendants failed to compel discovery to
obtain materials that were required to prosecute plaintiffs claim.
Plaintiffs, however, have failed to point to any specific evidence in
support of this allegation. Plaintiffs claim that defendants failed to
compel production of tapes of conversations between the brokers and Mr.
Pal which would have bolstered plaintiffs churning claim. Instead of
pointing to specific evidence showing that such tapes actually existed,
plaintiffs simply argue that defendants failed to obtain tapes "[w]hich
Mr. Pal could have heard and from which he could have selected those
which corroborated the existence of the pressure he felt was being
applied." Pls.' Mem. Opp'n Summ. J. at 8. This argument is based on pure
speculation and conjecture. "The party bearing the burden of proof has no
right to take the case to jury if a favorable verdict could only be the
product of `surmise, speculation, and conjecture.'" Lane Capital
Management, Inc. v. Lane Capital Management, Inc., 192 F.3d 337, 346 (2d
Cir. 1999) (quoting Calvert v. Katy Taxi, Inc., 413 F.2d 841, 844 (2d
Cir. 1969)). Plaintiffs have not submitted any concrete evidence to
support their allegation that defendants failed to obtain vital discovery
materials. Hence, plaintiffs have failed to sufficiently support their
claim that defendants breached their duty by failing to compel discovery
in the CFTC case.
Plaintiffs also allege that defendants failed to retain an expert in a
timely manner. Plaintiffs do not present any evidence or specific facts
in support of this claim; rather, plaintiffs simply assert that
defendants never paid the expert. The question of whether defendants paid
an expert is not germane to the issue of defendants' duty to plaintiffs.
Defendants have produced an affidavit from their proposed expert, Mr.
Dennis Stahr. Aff. of Dennis Stahr. In the affidavit, Mr. Stahr states
that defendants consulted him regarding the Pals' case and that his
opinion was contrary to the Pals' position in the CFTC case. Id. In light
of Mr. Stahr's affidavit, defendants have shown that they did, in fact,
obtain an expert in a timely manner. The absence of billing entries
showing payment to Mr. Stahr does not invalidate defendants show of
proof. Plaintiffs' unfounded claim that defendants failed to obtain an
expert is insufficient to support a rational finding in their favor;
thus, this claim does not survive summary judgment.
Finally, plaintiffs' allege that defendants failed to point out
specific selections from account statements which would have proved
plaintiffs' churning claim. The court finds that this claim is also
baseless and unsupported by the facts. Neither party disputes the fact
that defendants offered relevant account statements into evidence.
Plaintiffs have not pointed to any evidence showing that defendants
failed to single out sections of the account statements or that this
failure affected the outcome of the case. A factfinder would have no
basis for concluding that defendant committed a breach based on these
unsupported allegations. Hence, plaintiffs' have presented no genuine
issue of material fact to preclude summary judgment on any of their
D. Defendants' Counterclaim for Unpaid Legal Fees
Defendant seeks summary judgment with respect to their claim for
recovery of unpaid legal fees. The court finds that defendants are
entitled to the outstanding fees. Both parties admit that a contract for
legal services exists and that there is an outstanding bill for legal
services provided by defendants. Because the court has determined that
defendants have not committed malpractice, plaintiffs are obligated to
pay for legal services rendered. Accordingly, within thirty days of the
filing of this ruling, defendants shall submit an accounting detailing
the charges to plaintiffs and specifying the total amount due. Plaintiffs
will have thirty days to respond.
For the foregoing reasons, defendants' motion for summary judgment is
granted as to all of plaintiffs claims and as to Count I of defendants'
counterclaims. Plaintiffs action is hereby dismissed in its entirety with