Labor & Employment Law

City of New York Sanctioned In Employment Discrimination Case Involving Teacher Due To Repeated Failures To Comply With Discovery

City of New York Sanctioned In Employment Discrimination Case Involving Teacher Due To Repeated Failures To Comply With Discovery
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Attard v. The City of New York, __F.Supp.2d___(E.D.N.Y. May 5, 2008), is an example of how not to litigate a case. After obtaining several extensions, the City did not comply with discovery orders. When they submitted statistical information it was full of errors and plaintiff had to hire an expert to sought through it. The City was sanctioned the cost of the experts, costs and attorneys fees.

In ordering sanctions, the court stated:

Plaintiff avers that defendants? behavior warrants an order striking defendants? answer or precluding defendants from contesting plaintiff?s expert opinion. (See Second Motion 1.) However, ?[g]ranting of a litigation ending device such as striking the [defendants?] Answer for failure to comply with discovery orders is an extreme measure.? Fleming II, 2007 WL 4302501, at *3 (citing Bambu Sales v. Ozak Trading, 58 F.3d 849, 853 (2d Cir. 1995)); see Nat?l Hockey League, 427 U.S. at 639, 643 (suggesting that dispositive sanctions require showing of willfulness or bad faith on part of offending party). Without a demonstrative showing of defendants? bad faith, I decline to strike their answer. Similar reasoning applies to my evaluation of plaintiff?s request to preclude defendants from contesting plaintiff?s expert opinion. Although some case law implies that this measure may constitute an appropriate response to defendants? behavior, see, e.g., Hagans v. Henry Weber Aircraft Distribs., Inc., 852 F.2d 60, 64 (3d Cir. 1988), the centrality of expert testimony to the final disposition of this case would unduly prejudice defendants. Therefore, plaintiff?s request is denied.

Though defendants? actions do not warrant such drastic measures, monetary sanctions are necessary ?because the [defendants?] conduct has unduly impeded the progression of discovery and prevented the timely and effective prosecution of this action.? Fleming I, 2006 WL 2322981, at *4; accord id. at *5; Fed. R. Civ. P 16(f)(2) (?Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses ? including attorney's fees ? incurred because of any noncompliance with this rule . . . .?), 37(b) Advisory Committee Notes.

To date plaintiff has expended approximately $5,000 to have an expert examine what turned out to be flawed data provided by defendants. (See Second Motion 1, 2.) Because the data errors rendered the expert?s conclusions unusable, plaintiff inevitably will have to employ an expert again to produce a new report once defendants produce accurate data. Plaintiff should not shoulder these burdens. See, e.g., Fleming II, 2007 WL 4302501, at *4 (?A party may be sanctioned for its ?failure to produce the documents necessary to facilitate the expert?s review, particularly after multiple requests,? especially where ?extensive analysis of . . . statistical evidence? is required.? (quoting Evans v. Connecticut, 24 F. App?x 35, 37 (2d Cir. 2001) (ellipses in original)); accord Fleming I, 2006 WL 2322981, at *5. Consequently, I order defendants to compensate plaintiff for the reasonable costs that plaintiff incurred when the expert examined the corrupt data as well as the costs that plaintiff will expend for procuring a new expert report.

To remedy the extensive delays and waste of resources that defendants have
caused plaintiff, I also order defendants to pay all reasonable attorney?s fees and costs that plaintiff has accrued in her efforts to enforce discovery. See Fleming II, 2007 WL 4302501, at *3 (citing Fed. R. Civ. P. 37(c)(1)); Fed. R. Civ. P. 16(f). ?The amount of attorney?s fees to be charged . . . shall be determined by the lodestar analysis, whereby the number of billable hours are [sic] multiplied by counsel?s reasonable billing rate". . .

A May 27, 2008 New York Law Journal article about this case is available here (registration required).

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on June 16, 2008 (boomark / email).