Opinion
06 Civ. 0861 (PKL) (DFE).
September 14, 2006
This is an ECF case MEMORANDUM AND ORDER
In April 2003, the parties entered into a contract whereby, for $11 million, Defendant was to provide all work, labor, services and materials required for the complete performance of all aluminum window walls and related work in connection with the construction of a building in Manhattan. Plaintiff alleges that Defendant caused delay losses of more than $6 million.
In my Memorandum and Order dated June 22, 2006, I wrote:
. . . As to Document Request 21, the June 13 letter [from defense counsel] states that Defendant will produce all of its records concerning the manpower and supervision actually provided by Defendant to the construction Project. I direct that Defendant must also produce all of its records concerning equipment, material and overhead costs actually incurred on the Project. In all other respects, I sustain Defendant's objections to Document Requests 3, 6 and 21. [emphasis added]
In a July 17 fax, Plaintiff's counsel wrote me that none of those documents had yet been produced. On the same day, defense counsel faxed me: ". . . defendant is gathering these documents and will provide them in the immediate future." I knew that Plaintiff needed the documents to prepare for depositions starting August 14 in Missouri. On July 17, I issued the following order, handwritten and faxed:
It is now 25 days since my June 22 order. I see no reason why defendant has not produced these documents by now. I direct defendant to produce all of the documents no later than July 21, 2006. If not, the sanction will be at least $1,000 per day.
By letter dated July 25, Defendant asserted that it "has fully complied" with my orders, yet it conceded that it had "failed to provide records regarding its glass supplier, AFGD Glass and another supplier, Columbia Architectural." It said: "These documents were kept separate from the project management file[,] which is why they were overlooked. EFCO will produce those documents . . . within the next seven days." On July 28, I issued an order, handwritten and faxed, that said in part:
Defendant has NOT "fully complied" with my orders of June 22 and July 17. In view of the depositions scheduled to start on August 14, it was a serious lack of compliance to overlook . . . the files concerning (1) AFGD Glass and (2) Columbia Architectural. As a matter of grace, I require the Defendants to pay a sanction of only $2,000 at this time. . . .
I have now received a joint letter from the parties dated August 9, 2006, plus an August 16 letter from Plaintiff and an August 17 response from Defendant. Near the end of the August 9 joint letter, Defendant asks me to reconsider my $2,000 sanction. Defendant says there was no willful disregard for my previous orders, and there was a delay of only seven days in getting the documents to Plaintiff. My July 17 order had warned that "the sanction will be at least $1,000 per day." In my view, I reduced the sanction from $7,000 to $2,000 as a matter of grace. I have reconsidered the sanction, but I adhere to it. I direct Defendant to pay the $2,000 to Plaintiff no later than September 30, 2006.
I turn now to the bulk of the August 9 joint letter. In my June 22 order, I explained that the purpose of my joint-letter requirement "is to enforce Rule 37's requirement that you confer (talk to each other) before bringing a discovery request to a judge." My Standing Order for Discovery Disputes says:
¶ 1. Conference requirement. . . . "Confer" means to meet, in person or by telephone, and make a genuine effort to resolve the dispute. . . . The exchange of letters between counsel stating positions "for the record" shall not be deemed compliance with this requirement, or with Rule 37(a)(2) (A and B). . . .
Mr. Kamien and Mr. Oliver held a telephone conference on July 25, and then exchanged letters on the next two days (Exhs. E and F to the August 9 joint letter). But it seems to me that they have failed to hold a true conference. In the August 9 letter, at page 3, Mr. Kamien writes:
EFCO appears to have now taken the position that no such documents exist, i.e., that EFCO has no internal records as to what was manufactured and when it was manufactured. . . . It is totally incred[ible] for EFCO to state that it has no documents with regard to the details (e.g., the date, time spent and resources expended) for the fabrication and assembly of the materials produced under the Contract.
However, EFCO does not seem to be making those sweeping statements. At pages 3-4 of the August 9 joint letter, Mr. Oliver writes 10 short, specific paragraphs on these subjects. Mr. Kamien has not responded to those specifics, and I do not sense that he has conferred with Mr. Oliver about them. In any event, I direct Mr. Kamien and Mr. Oliver to hold another telephone conference and to discuss each of those 10 paragraphs in turn. If they are still unable to resolve their disputes, then they may send me another joint letter.