United States District Court, S.D. New York
July 12, 2005.
OS RECOVERY, INC., et al., Plaintiffs,
ONE GROUPE INTERNATIONAL, INC., et al., Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Defendant Latvian Economic Commercial Bank ("Lateko") moves for
sanctions against plaintiffs who have served allegedly
insufficient responses to discovery requests. It claims that all
of the 202 remaining plaintiffs have failed adequately to respond
to its discovery requests and seeks dismissal of their claims.
Lateko has divided the alleged failures into 15 categories and
provided the Court with a spreadsheet that purports to reflect,
in grid form, which of the categories of deficiencies categorizes
the responses of each plaintiff. At the outside, then, there are
potentially 3,030 claims of deficient responses (202 plaintiffs
times 15 categories of deficiencies). While the number actually
claimed by Lateko is smaller not every plaintiff is said to
have failed in each of the 15 claimed respects it still is very
large, probably in the low thousands. Some of the categories of
claimed deficiencies, if indeed Lateko's characterizations are
correct, appear to be substantial and perhaps even to warrant
dismissal. Others appear insubstantial or even trivial.*fn1
Fed.R.Civ.P. 26(b) was amended a few years ago to permit
courts to limit unreasonably cumulative or duplicative discovery,
to foreclose discovery where the party seeking it has had ample
opportunity to obtain the information by other means, or where
the burden or expense of the proposed discovery outweighs its
likely benefit and to do so on its own initiative. Fed.R. Civ.
P. 26(b)(2). Common sense suggests that the same considerations
justify a conclusion that a district court, in its discretion, may refuse to comb through
hundreds or thousands of discovery responses in a search for
deficiencies that might warrant dismissal where the party seeking
such sanctions evidently have failed to make a serious effort to
separate wheat from chaff.
Accordingly, Lateko's motion for sanctions against the Doe
plaintiffs and OSRecovery, Inc, is denied. Lateko may renew its
motion, if it is so advised, provided:
Its counsel of record certifies that, in his
professional opinion, the alleged defects as to each
plaintiff are so prejudicial to Lateko's defense and
substantial that they warrant dismissal.
It relies on no more than two alleged deficiencies
in support of relief with respect to any given
It serves and files its motion no later than July
It clearly demonstrates the prejudice to its
defense of each alleged deficiency on the part of
This is not to say that plaintiffs have been blameless with
respect to this motion. It seems reasonably clear that many
plaintiffs, despite repeated efforts by their counsel, have not
complied with discovery demands. Their counsel must understand
that the ultimate responsibility here lies with their clients. A
client's substantial and prejudicial failure to comply with
discovery obligations, despite the best efforts of its counsel,
may warrant dismissal.
The parties are urged to attempt to resolve these matters
without further court intervention.
The Court notes also that it has been unable to find the
original of Lateko's motion on file in the Clerk's Office
although it frankly concedes that the large volume of papers
filed under seal perhaps has obscured its presence. Lateko shall
ensure that the motion is filed of record.