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Oleg Cassini, Inc. v. Electrolux Home Products, Inc.

United States District Court, Second Circuit

June 19, 2013

OLEG CASSINI, INC., Plaintiff,


JAMES C. FRANCIS, IV, Magistrate Judge.

In this action, Oleg Cassini, Inc. ("Oleg Cassini") alleges that in 2008 a fire at its property started when a dryer designed and manufactured by Electrolux Home Products, Inc. ("Electrolux") malfunctioned. Consequently, the plaintiff asserts various claims for products liability, breach of warranty, and violation of the New York consumer protection laws. Oleg Cassini now moves for sanctions against Electrolux, contending that the defendant has failed to produce relevant discovery materials and disobeyed a previous discovery order. In the alternative, Oleg Cassini asks for an order compelling production of the missing materials. For the reasons set forth below, the plaintiff's motion is granted in part.


On August 3, 2008, a fire caused significant damage to several rooms of the plaintiff's property. (Complaint ("Compl."), ¶¶ 15, 18). The plaintiff alleges that the fire originated from an under-the-counter dryer designed, manufactured, and assembled by the defendant (the "Product"). (Compl., ¶¶ 11, 15). The plaintiff further claims that the Product was dangerous and defective and that the defendant failed to provide timely and adequate warning of the dangers associated with it. (Compl., ¶¶ 16, 26).

Resolving an earlier discovery dispute, I denied the plaintiff's motion to compel production of "information about [dryer] models other than the model involved in the 2008 fire" without prejudice to the plaintiff's future demonstration "that other models share pertinent characteristics with the Product, " and suggested that "[s]uch a showing could [] be[] made... through an affidavit of an expert in mechanical engineering." Oleg Cassini v. Electrolux Home Products, Inc., No. 11 Civ. 1237, 2013 WL 466198, at *3 (S.D.N.Y. Feb. 7, 2013) (the "February 7 Order"). I further required the defendant to provide the identity of persons with knowledge of its sales, revenues, and profits from the sale of the model from 2000 until the present, subject to the same caveat noted above. Id . In addition, I granted the plaintiff's motion to compel interrogatory responses and production of documents "related to prior accidents, complaints, and litigation to the extent that they relate to fires caused by under-the-counter dryers manufactured by the defendant, " id., and required production of the reports of fire investigators Tom Bajzek, Raymond Negron, and Jonathan P. Debrow or submission of an affidavit from the defendant "explaining why [such reports] are not in its possession, " id. at *4.

Purporting to comply with the February 7 Order, Electrolux provided supplemental responses, including approximately 300 documents and an affidavit asserting that no reports or other documents by Mr. Bajzek, Mr. Negron, or Mr. Debrow existed. (Declaration of Nicholas A. Vytell dated May 29, 2013 ("1st Vytell Decl."), ¶ 7; Defendant's Responses to Plaintiff's Discovery Demands dated Feb. 28, 2013, attached as part of Exh. B to 1st Vytell Decl.; Affidavit of Ellen H. Grepier dated Feb. 28, 2013 "Grepier Aff."), attached as part of Exh. B to 1st Vytell Decl.).

After reviewing Electrolux's supplemental production, Oleg Cassini identified "a number of other actions [against the defendants] involving dryer fires" that had not been disclosed, including Donegal Mutual Insurance Co. a/s/o Vanessa Schantz v. Electrolux North America, No. 1:08-cv-2171 (M.D. Pa. Dec. 3, 2008) (the "Schantz Action"). (1st Vytell Decl., ¶ 9). Oleg Cassini served a subpoena on counsel for the plaintiff in the Schantz action seeking "all discovery demands and responses, expert reports and disclosures, and deposition transcripts" from the case. (Subpoena dated March 28, 2013, attached as part of Exh. C to 1st Vytell Decl.). Electrolux moved to quash, but ultimately agreed that it would produce all of the documents from the Schantz action and withdraw its motion to quash if the subpoena was withdrawn. (E-mail chain of April 25, 2013 ("April 25 E-mail Chain"), attached as Exh. G to 1st Vytell Decl.; Memo. Endorsement dated April 29, 2013).

Meanwhile, the plaintiff procured the report of engineer John J. Lentini, which outlined specific aspects of the Product that he believed contributed to the fire, and provided it to the defendant along with a letter complaining about deficiencies in Electrolux's supplemental production. (Letter of Nicholas A. Vytell dated April 12, 2013 ("Vytell Letter"), attached as Exh. E to 1st Vytell Decl.; Declaration of John J. Lentini dated April 12, 2013 ("Lentini Decl."), attached to Vytell Letter). Soon thereafter, Oleg Cassini propounded its Third Set of Interrogatories and Third Requests for Production of Documents, which were "focused on discovery of the particular issues identified" in the Lentini Declaration. (1st Vytell Decl., ¶ 14; Plaintiff, Oleg Cassini, Inc.'s, Third Set of Interrogatories to Defendant, attached as part of Exh. F to 1st Vytell Decl.; Plaintiff, Oleg Cassini, Inc.'s, Third Request for Production of Documents, attached as part of Exh. F to 1st Vytell Decl.). I entered a protective order governing the handling of confidential materials on May 13, 2013. (Stipulation and Protective Order dated May 13, 2013).

Electrolux produced no further documents in May. On May 29, 2013, Oleg Cassini filed this motion seeking sanctions against Electrolux, arguing that the defendant had (1) "failed entirely to respond" to the Third Set of Interrogatories and Third Request for Production of Documents (Memorandum of Law in Support of Plaintiff's Motion for Sanctions or, in the Alternative to Compel Discovery ("Pl. Memo.") at 3); (2) "reneged on th[e] express agreement" to produce documents from the Schantz action (Pl. Memo. at 3); (3) "made minimal effort to comply" with the February 7 Order (Pl. Memo. at 4); and (4) "failed to provide any discovery related to other electric dryer models with similar characteristics and/or components identified" in the Lentini Declaration (Pl. Memo. at 4).

Electrolux's opposition was due on June 5, 2013. (Declaration of Nicholas A. Vytell dated June 10, 2013 ("2nd Vytell Decl."), ¶ 3); Local Rules of the United States District Courts for the Southern and Eastern Districts of New York 6.1. No opposition was filed. Instead, on June 6, 2013, the plaintiff received from Electrolux a hard drive containing approximately 162, 000 documents, indexed into fifteen "general categories, " accompanied by a letter dated June 3, 2013, asking Oleg Cassini to withdraw this motion in light of the "comprehensive disclosure[] and the effort undertaken to compile and produce" the documents. (2nd Vytell Decl., ¶¶ 4, 9; Letter from John P. Freedenberg dated June 3, 2013, attached as Exh. A to 2nd Vytell Decl.). On June 10, 2013, Oleg Cassini filed a declaration of counsel charging that the production was still incomplete, noting that, although it had not reviewed all of the documents recently produced, Electrolux had not provided written responses to the Third Set of Interrogatories or Third Request for Production of Documents, and "despite numerous assurances, ... ha[d] not produced electronic copies of the photographs from the scene of the fire." (2nd Vytell Decl., ¶ 7).

Electrolux responded to plaintiff's counsel's second declaration on June 14, 2013, asserting that its June 3, 2013, production included (1) "readily available claim files for electric free-standing dryers, which are responsive to the first set of requests for production" in light of the Lentini Declaration; (2) the Schantz documents; and (3) "documents responsive to [the] [p]laintiff's third set of requests for production." (Electrolux Home Products, Inc.'s Response to Plaintiff's Motion for Sanctions ("Def. Memo.") at 8). Subsequent to the June 3 production, Electrolux reportedly "produced the remainder of the responsive documents and the written responses to [the] [p]laintiff's third set of interrogatories and requests for production." (Def. Memo. at 8).

Oleg Cassini seeks three alternative types of sanctions for discovery abuses:

(1) a terminating sanction, striking Electrolux's answer (1st Vytell Decl., ¶¶ 26-29; 2nd Vytell Decl., ¶ 11);
(2) entry of an order "deeming it established that [] there were numerous other instances in which electric dryers manufactured by [Electrolux] malfunctioned due to a failure of the rear drum bearing assembly[, ] [that] these failures resulted in fires and/or a significant hazard of fire[, ] and [] [that Electrolux] was aware of this malfunction and the risks presented at the time ...

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