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

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.}

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