chevron-down Created with Sketch Beta.
January 31, 2017 Practice Points

Document Production: Burying Responsive Documents Earns $10,000 Sanction

A reminder to litigation attorneys that courts do not look favorably on parties that dump documents.

By Andrew J. Felser

Is a document dump worth the risk? A New York Court recently noted that it is discovery abuse to bury your opponent in an avalanche of documents of which only a fraction is relevant. Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 42 N.Y.S. 3d 823 (N.Y. App. Div. 2016). In this legal-malpractice case, the plaintiff produced more than 30,000 documents. The responsive documents were “imbedded in large amounts of otherwise irrelevant documents.” The court ordered the plaintiff to put the documents in an electronically searchable format and to organize them in the order requested by the defendants. After the plaintiff complied in part only, the court imposed a $10,000 fine (payable to the defendants). The court afforded the plaintiff an extension to cure its noncompliance and declined to dismiss the action as a sanction.

This case is a reminder to litigation attorneys that courts do not look favorably on parties that dump documents.


Andrew J. Felser is with Felser, P.C., in Denver, Colorado.


Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).