Friday, January 11, 2013

Defendant’s Failure to Produce Documents from “Coordinated” Third Party Warrants Sanctions

The court granted plaintiff's renewed motion for monetary sanctions for defendants' repeated failure to provide documents in the possession of a third party under common control and in “close coordination” with defendant. “Because of the control or ‘close coordination’ between the two companies, defendants were required to produce the requested information.” "This marks the third motion plaintiff has filed relating to essentially the same set of documents. . . . [I]t was only after the recent 30(b)(6) deposition of [the third party under common control with defendant] that it became clear that defendant did not conduct a reasonable investigation regarding [the third party’s] document production or [the third party’s] document retention for purposes of this litigation. . . . Defendants cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process. Defendants must produce all responsive documents, even if those documents are held by [the third-party], because we have already determined that the separation of the two companies 'cannot be used as a screen to disguise the coordinated nature' of their business."

Peerless Industries, Inc. v. Crimson AV, LLC, 1-11-cv-01768 (ILND January 8, 2013, Order) (Cox, M.J.).

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