United States District Court, W.D. New York
W. POLAK, ESQ. Attorney for Plaintiffs.
ELSER MOSKOWITZ EDELMAN & DICKER LLP Attorneys for
Defendants BEATA SHAPIRO, of Counsel.
FELDMAN KIEFFER, LLP Attorney for Third-Party Defendant ADAM
C. FERRANDINO, of Counsel.
DECISION AND ORDER
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE.
personal injury collision case involving Plaintiffs' auto
and Defendants' tractor-trailer, by papers filed November
23, 2016 (Dkt. 58), and November 28, 2016 (Dkt. 59),
Plaintiffs Roth and Bauman
(“Plaintiffs”) moved, respectively, to compel
production of certain documents requested during the
depositions of Defendant Singh, the tractor-trailer driver,
and Mr. Keith Goodyear (“Goodyear”), as a Rule
30(b)(6) deponent for Defendant 2810026 Canada Limited, d/b/a
Defendant Frederick Group, Inc. (“Frederick
Trucking”). Specifically, Plaintiffs seek (1) copies of
all contracts between Singh and Frederick Trucking, (2) the
address of Frederick Trucking's offices in Moline,
Illinois, (3) Frederick Trucking's driver policies and
procedures, (4) copies of any computer internet transmissions
(Qualcom report) or other statements by Singh concerning the
collision, (5) verifications of correct VINs for the
tractor-trailer in order to confirm Defendants' insurance
coverage, and (6) contact information for Singh's
oral argument, conducted December 21, 2016, Defendants'
counsel offered to provide supplemental responses to
Plaintiffs' requests in order to avoid the need for a
judicial determination of Plaintiffs' motions. Dkt. 64.
Accordingly, on December 30, 2016, Defendants informed
Plaintiffs that Defendants (1) lack any Qualcom reports
regarding the collision with Plaintiffs, (2) provided a copy
of Singh's handwritten memorandum as Singh's only
statement regarding the circumstances of the collision, (3)
confirmed Plaintiffs have previously been provided with all
relevant driver policies and procedures manuals as
Plaintiffs' and Third-Party Defendant Bauman previously
requested, and (4) confirmed that the previously provided
VINs match the insurance policies and driver's log
previously provided to Plaintiffs thereby rendering
unnecessary the need for Plaintiffs to serve further
discovery upon Frederick Trucking in Moline, Illinois
regarding this issue. Dkt. 65-1, 1-6 (“Defendants'
on Defendants' Submission, counsel to Plaintiff Bauman
representing Bauman, as Third-Party Defendant, found
Defendants' Submission satisfactory and, on January 4,
2017, withdrew the motion on behalf of Bauman as Third-Party
Defendant. Dkt. 68. Receiving no similar communication from
Plaintiff Roth and Bauman's counsel as Plaintiffs, the
court directed Plaintiff Roth and Bauman's counsel to
inform the court by January 6, 2017 as to whether Plaintiffs
were satisfied with Defendants' Submission and whether
Plaintiffs' motion was also withdrawn. By letter of
Plaintiffs' counsel, dated January 10, 2017, Roth and
Bauman disputed the accuracy of the Singh written statement
provided by Defendants in Defendants' Submission,
reiterated Plaintiffs' complaint about Defendants'
lateness in production of the requested documents and
information during the deposition, disputed Goodyear's
assertion that no Qualcom report had been transmitted to
Federick Trucking at the time of the collision and requested
Goodyear's entire claim file in the matter, and repeated
Plaintiffs' demands for copies of responsive policies and
procedures based on Singh's previously stated inability
to produce such documents (Dkt. 66).
whether a response to a production request pursuant to
Fed.R.Civ.P. 34(a) is sufficient, does not depend on a
requesting party's agreement with the contents of the
documents produced. Additionally, it is well-established that
a party may not be compelled to produce documents that do not
exist. See Hallmark v. Cohen & Slamowitz, 302
F.R.D. 295, 299 (W.D.N.Y. 2014) (defendant not required to
have audited financial statements, which did not exist,
prepared so as to comply with plaintiff's discovery
request (citing cases)). Thus, that Plaintiffs wish to
contest the authenticity or accuracy of Singh's
hand-written statement, Dkt. 65-1 at 5-6, which Defendants
represent is the only statement Singh made, is irrelevant to
the merits of Plaintiffs' motion as are Plaintiffs'
repeated demands for copies of the Defendants'
driver's policies and procedures manuals, which
Defendants represent were previously provided to Plaintiffs
and are no longer in Defendants' possession. Plaintiffs
do not dispute that Defendants' Submission with regard to
the tractor-trailer's VINs and related insurance coverage
is satisfactory. Thus, the only possible unresolved issue
arising on Plaintiffs' motion is Plaintiffs'
purported request asserted in Plaintiffs' November 11,
2016 e-mail to Defendants' attorney, for the name of
Singh's accountant. See Dkt. 58-3 at 2. However,
that demand according to Plaintiffs was made at page 48 of
Singh's deposition and a copy of such transcript page was
not included in Plaintiffs' motion papers. Accordingly,
as Plaintiffs' papers do not support this request, the
court is unable to find that Defendants improperly failed to
provide this information. Further, as Plaintiffs' request
to amend the Scheduling Order, Dkt. 66 at 3, is not in the
form of a motion, it is also not considered by the court at
although Plaintiffs also request costs and expenses of
Plaintiffs' motion, Dkt. 58 at 3, pursuant to
Fed.R.Civ.P. 37(a)(5) (“Rule 37(a)(5)”), the
court finds that given the existence of contrasting caselaw
within the Second Circuit with regard to the obligation of a
party to respond to an oral production request made initially
during a deposition and later confirmed by letter,
compare Schwartz v. Marketing Publishing Company,
153 F.R.D. 16, 21 (D.Conn. 1994)
(“Schwartz”) (refusing to enforce oral
deposition and letter request for production absent properly
served Rule 34(a) production request), with Employers
Ins. Company of Wausau v. Nationwide Mutual Fire Ins.
Co., 2006 WL 1120632, *2 (E.D.N.Y. Apr. 26, 2006)
(“Wausau”) (enforcing defendant's
oral request made at deposition followed by confirming letter
in lieu of formal Rule 34(a) production request being served
on plaintiffs), Defendants' failure to earlier respond to
Plaintiffs' requests was substantially justified thereby
negating the prerequisite for an award of sanctions pursuant
to Rule 37(a)(5). A party refusing discovery is substantially
justified in refusing discovery where a “genuine
dispute” existed or “‘if reasonable people
could differ as to the appropriateness of the contested
action, '” Parsi v. Daioleslam, 778 F.3d
116, 126 (D.C. Cir. 2015) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (internal citations
and brackets omitted)), such as where a party believed
caselaw supported its position. Id. (citing
Maddow v. Proctor & Gamble Co., 107 F.3d 846,
853 (11th Cir. 1997)). “Whether a party was
substantially justified in resisting discovery is determined
by an ‘objective standard of reasonableness and does
not require that the party have act in good
faith.'” Underdog Trucking, LLC. v. Verizon
Services Corp., 273 F.R.D. 372, 377 (S.D.N.Y. 2011)
(quoting Bourne of New York City, Inc. v. AmBase
Corp., 161 F.R.D. 258, 262 (S.D.N.Y. 1995) (citing
Pierce, 487 U.S. at 565)). Here, the contrasting
rulings on whether Defendants were required to respond to
Plaintiffs' demands as stated in the Schwartz
and Wausau cases supports that Defendants'
failure was substantially justified for the purposes of Rule
37(a)(5). Accordingly, the court finds Defendants'
failure to timely respond to Plaintiffs' oral and letter
requests for follow-up document production was substantially
justified and does not warrant an award of Plaintiffs'
costs and reasonable attorneys fees.
on the foregoing, Plaintiffs' motion (Dkt. 58) is
DISMISSED as moot in part and DENIED in part; and
Defendant/Third-Party Plaintiff's motion (Dkt. 59) is
deemed WITHDRAWN and, as such, is DISMISSED as moot.