The judge in an employment case against the New York Fed grants in part and denies in part a motion for discovery sanctions after finding the plaintiffs’ repeated discovery failures constituted intentional bad faith and wasted Court time and resources.

The U.S. District Court for the Southern District of New York granted the defendant’s request for attorney’s fees and adverse inferences relating to the plaintiffs’ repeated discovery deficiencies, but denied the request to instruct the jury regarding the particular inferences it should draw from the plaintiffs’ failure to produce certain material.

We work closely with case teams and opposing counsel to participate in Rule 26 (f) and other meet and confer conferences, ensuring that documents are produced in a timely and defensible manner.

In Gardner-Alfred v. Federal Reserve Bank of New York, No. 22-cv-01585 LJL, 2023 WL 3495091 (S.D.N.Y. May 17, 2023), two individuals sued their former employer, the Federal Reserve Bank of New York, for terminating their employment when they refused to comply with the defendant’s covid-19 vaccination policy. The plaintiffs claimed that the vaccination went against their religious beliefs and that their terminations violated the Religious Freedom Restoration Act, the Free Exercise Clause of the First Amendment, and Title VII.

Throughout the discovery process, the plaintiffs repeatedly delayed producing documents in response to the defendant’s discovery requests and failed to meet discovery deadlines. After the plaintiffs produced a significant number of documents over a month after the fact discovery deadline had closed and produced an expert report that relied on responsive documents that had not been produced, the defendants filed a motion for discovery sanctions.

The court found that sanctions were warranted under Rules 16(f), 37(b), and 37(c), because the plaintiffs:

• repeatedly disregarded court-ordered deadlines for discovery;
• disregarded their obligations under Rule 26(e)(1)(a) to supplement or correct prior discovery responses with additional responsive material; and
• showed a repeated and flagrant disregard for their discovery obligations throughout the case, including misrepresenting that certain documents never existed despite significant evidence to the contrary in order to avoid producing information damaging to their case.

The court also found that sanctions were appropriate under Rule 26(g), which requires the attorney or party producing documents to certify that the discovery response is complete and correct to the best of their knowledge, because plaintiffs:

• made repeated representations that all responsive documents had been produced without a reasonable basis, evidenced by the fact that they made several subsequent productions that dwarfed their original “complete” production;
• crafted search terms that were not reasonably calculated to lead to production of documents relevant to their claims or the defendant’s defenses;
•  inappropriately withheld documents on the basis of privilege, even where no privilege plainly applied; and
• failed to produce relevant documents on the basis that they were irrelevant or had been inadvertently missed.

The court awarded the defendant costs incurred in dealing with plaintiffs’ discovery deficiencies, to be paid jointly and severally by plaintiffs and their counsel. It also granted the defendant’s request for an adverse inference instruction relating to documents the plaintiffs testified existed but later refused to produce, finding the intentional withholding and/or destruction of the documents represented intentional bad faith. The court declined to instruct the jury that it should draw any particular inference based on the fact that the plaintiffs failed to produce certain material at issue.