Opinion
98 Civ. 3710 (WK)(RLE).
May 2, 2000.
MEMORANDUM OPINION ORDER
I. INTRODUCTION
This matter was referred by the Honorable Whitman Knapp on November 4, 1998, for general pretrial supervision and resolution of dispositive motions. On October 21, 1999, defendant Gootnick Enterprises, d/b/a It's All Greek to Me ("Greek"), submitted a motion for sanctions against plaintiff GMA Accessories, Inc., ("GMA") for noncompliance with discovery and destruction of evidence, pursuant to Rule 37 of the Federal Rules of Evidence. After conducting an evidentiary hearing on the matter on February 17, 2000, and for the following reasons, the Court GRANTS Greek's motion for sanctions and the plaintiff shall pay all of Greek's reasonable expenses incurred in securing the discovery sought, plus an additional $10,000. Additionally, the Court orders John Bostany. counsel for GMA, to pay $5,000 as a sanction for his misrepresentations to the Court and tactical maneuvering.
II. BACKGROUND
This case involves particularly contentious counsel with an affinity for protracted motion practice. For purposes of this motion, the tortured procedural history has been distilled to these essential facts. On May 22, 1998, plaintiff GMA filed a complaint alleging trademark infringement in violation of the Lanham Act, 15 U.S.C. § 1115 (b), regarding the use of plaintiff's trademarked phrase "Floppy Friends" in connection with Greek's manufacturing, sale and distribution of soft plush toys. On September 1, 1998, Greek served document requests on GMA seeking production of sale invoices of the product "Floppy Friends." See Def. Mem. at 2. In its response to Greek's request for production of documents, GMA refused to produce any invoices, objecting to the request as being "privileged, unlikely to lead to discoverable evidence, irrelevant and immaterial to the claims asserted by the plaintiff." Def. Mem., Exh. 3 at ¶ 4. A pretrial conference was held before the Court on April 16, 1999, whereby the Court found the discovery to be relevant and ordered GMA to produce the sale invoices. See Def. Mem., Exh. 4 at 62. The Court followed this oral ruling with a written Order, ordering production by May 3, 1999. See 4/20/99 Order. GMA failed to comply with this Order by not producing the invoices to Greek. In response to this failure, the Court directed GMA to show cause why sanctions should not be imposed on them pursuant to Rule 37(b) and (d) of the Federal Rules of Civil Procedure. See 5/7/99 Order.
"Def. Mem." refers to the defendant's post-hearing memorandum of law in support of defendant's motion to dismiss the complaint, filed March 9, 2000.
"4/20/99 Order" refers to the Order of this Court, dated April 20, 1999.
"5/7/99 Order" refers to the Order of this Court, dated May 7, 1999.
A. Failed Inspection of the Invoices
In response to the Show Cause Order, GMA filed a response, stating that Greek "may inspect plaintiff's invoices at its warehouse in New Jersey within the next 30 days at a date to be proposed by defense counsel." See Def. Mem., Exh. 8 at ¶ 3. The inspection of the documents was scheduled to take place on July 1, 1999, at 2:00 p.m., and on July 6, 1999, at 12:00 p.m. See Def. Mem., Exh. 9.
What transpired on July 1, 1999, is contested between the parties. Greek filed a motion to dismiss the case for noncompliance with discovery and destruction of evidence on October 21, 1999. In its submissions, Greek maintains that on July 1st at 2:00 p.m., a representative of Greek, a paralegal named Eric Whitman, went to Secaucus, New Jersey, to conduct the scheduled inspection. See Def. Let. at 3. When Whitman arrived at the warehouse, the warehouse manager, named "Mike," told him that "no one had advised him that anyone was coming to inspect any documents on that date and further, that all such records were kept at the office of the comptroller in New York City." See Whitman Aff. at ¶ 3. Subsequently, Whitman was denied access to the GMA warehouse and the discovery inspection did not take place on July 1, 1999. On July 13, 1999, Greek sent a letter to GMA, stating that it was not allowed access to the documents for inspection on July 1st, and requesting that the documents be copied and sent to Greek. See Def. Mem., Exh. 10.
"Def. Let." refers to Greek's letter to the Court in support of their application to dismiss plaintiff's complaint, dated October 21, 1999.
"Whitman Aff." refers to the affidavit of Eric Whitman, dated and signed October 21, 1999.
In response to the motion to dismiss, GMA maintains a different version of events in direct contravention to Greek's account. First, John Bostany, counsel for GMA, by way of letter to this Court, called into question the veracity of Whitman's account, stating Greek "wants us to believe that on July 1st his paralegal visited GMA for an inspection of documents, spoke to someone named `Mike' and then just turned around and went back to New York. . . ." See 10/25/99 Pl. Let. Subsequently, by way of affidavit, Bostany again questioned the truthfulness of Greek's contention that Whitman attempted the inspection, by stating "Whitman claims that he spoke to a person named `Mike' and never asked for" the person responsible for the document production, William Maloof. See Bostany Aff. at ¶ 11. In support, plaintiff provided an affidavit of Maloof, the Chief Executive Officer of GMA, who stated:
"10/25/99 Pl. Let." refers to the letter addressed to this Court from GMA, dated October 25. 1999.
"Bostany Aff." refers to the affidavit of John P. Bostany, dated and signed December 13, 1999.
On July 1 and July 6, 1999, I was present at the Secaucus warehouse prepared to allow the attorneys for the defendant in this case to inspect all of our purchase orders and invoices pertaining to Floppy Friends. On neither of those dates did the attorneys for the defendant arrive for an inspection.
"Maloof Aff." refers to the affidavit of William Maloof, signed and dated November 3, 1999.
Additionally, Bostany pointed to the fact that the car service voucher of Whitman's alleged attempt indicated that he traveled to 231 Secaucus Road, not 245 Secaucus Road, which is where the warehouse is located. See Bostany Aff., ¶ 10. GMA further contended that the motion should be denied because Greek has refused to cooperate by taking its invitation to schedule a further inspection, or agree to copying of the documents at Greek's expense. See id. at ¶ 12; Pl. Cross Mot. at ¶ 7.
"Pl. Cross. Mot." refers to the Notice of Cross Motion, and accompanying affidavit of John P. Bostany, dated and signed November 8, 1999.
B. Spoilation of Evidence
Greek also argues that GMA has destroyed key evidence in this case by intentionally discarding the invoices pertaining to one of the products, the Floppy Friends "moose." Greek points to Bostany's representation to Magistrate Judge Pisano in the District of New Jersey, by which he asserts that "GMA moved its records to its corporate office in Secaucus, New Jersey earlier this year and in the process discarded all old (pre-1998) purchase orders and invoices." See Def. Mem., Exh. 21 at 2. Greek maintains that it was this disclosure of spoilation of evidence that prompted this aspect of the instant motion.
A separate case ensued in the District of New Jersey regarding the trademark infringement of a particular product, the Floppy Friends "moose." This New Jersey action has been transferred to this Court, and is now part of this litigation.
In response to the instant motion, Bostany represented to this Court that "[n]one of those invoices or purchase orders were destroyed as defense counsel suggests." 10/25/99 Pl. Let. at 1.
C. Default on Court Ordered Deposition
Greek served a notice for the deposition of Maloof on September 24, 1998. The deposition did not take place, and again, the surrounding circumstances are contested between the parties. On April 20, 1999, by way of written order, this Court ordered GMA to comply with Greek's notice of deposition for Maloof, and ordered GMA to schedule a date for the deposition to take place. See 4/20/99 Order. After several scheduling problems, the deposition was scheduled for July 13, 1999. However, Maloof did not appear on this date, and a default appearance was noted on the record. See Def. Mem., Exh. 27. GMA did send a facsimile to Greek the evening before the scheduled deposition, on July 12, 1999, by which GMA indicated that Greek had canceled the Maloof deposition. See id . at Exh. 26. It appears from the record that Greek canceled two other depositions which were scheduled for July 8th and 9th, which Greek informed GMA by facsimile dated July 7th. See id . at Exh. 25.
In response to this motion, GMA filed a cross motion for fees and costs pursuant to 28 U.S.C. § 1927 for "vexatiously and frivolously increasing the costs of prosecuting this trademark infringement action." See Pl. Cross Mot.
III. FINDINGS OF THE EVIDENTIARY HEARING
The Court held an evidentiary hearing on this matter on February 17, 2000. A summary of each parties testimony is as follows.
A. Greek's Version
For Greek, Whitman testified that he first went to 245 Secaucus Road, and was greeted by a secretary, whom he showed a business card. See Tr. at 34-35. After informing her that he was here to do a document inspection, the secretary told him to go to 231 Secaucus Road and ask for the warehouse manager, "Mike." See id . At the 231 Secaucus Road location, Whitman spoke to a person who identified himself as "Mike," and informed him that he was there to inspect purchase orders and invoices in the "GMA Accessories versus It's Greek to Me" matter, which was to have been arranged for this date and time by Bostany. Id . at 38. The warehouse manager, Mike, informed Whitman that he knew of no such inspection, that "the documents were not at the Secaucus warehouse location, they were in fact under the control of Mr. Maloof in a downtown New York City location." Id . Whitman proceeded to leave, without having completed the inspection.
"Tr." refers to the transcript of the evidentiary hearing held in this matter on February 17, 2000.
B. GMA's Version
For GMA, Maloof testified that he was available and ready to assist defendant in the inspection, but no one came to the warehouse at 245 Secaucus Road to inspect the documents. See id . at 54. Additionally, Masoud Altirs, who admitted that he uses the name "Mike," testified for GMA that he is the Vice-President of GMA, and that he had not been advised that someone would be inspecting documents. Altirs also testified that a man, later identified as Whitman, did come to the warehouse, asked for him and stated that he "was here to for the inspection." Id . at 78. Altirs stated that Whitman did not give him his name, did not say where he was from, would not give him a business card, and left quickly. Id.
Also significant to GMA's presentation of evidence was the unannounced delivery of several large boxes, delivered to the courtroom in the midst of the evidentiary hearing. GMA represented that the boxes contained the invoices at issue, which were copied by "plaintiff at its own expense . . . of over $5,000 for almost 30,000 documents. . . ." Pl. Mem. at 7. The Court finds this significant given the previous position taken by GMA, that the production was "overly burdensome," and inspection of the documents was the only means by which the discovery was made accessible to the defendant. The Court also notes that GMA offered to copy the discovery at issue only after the filing of the motion to dismiss, and made the offer by way of several facsimiles to defendant. See Pl. Mem., Exh. C.
Regarding the "moose" invoices, Maloof testified to the Court that these invoices were "lost" in transit between New York and New Jersey. See Tr. at 69.
C. Conclusion
Based on the evidence at the hearing and the submitted affidavits, the Court finds the testimony of Whitman to be credible, that he went to the appropriate site, properly identified himself, and was told that the inspection would not take place. The Court finds that Whitman was affirmatively misled when he was sent from the 245 location to the 231 location and when he was told that the documents were under Maloof's control in New York City. The Court finds that it is not credible, given the history of this case, that the only person at the site who was expecting an inspection was Maloof. The Court specifically discredits the testimony that the person in charge of the warehouse was not told and that the receptionist was not alerted to the arrival of anyone with respect to the inspection. However, even if the Court were to fully credit Maloof's testimony, he did nothing to facilitate the inspection. This was an insufficient response to the Court's Order on inspection. The Court is left with the unmistakable impression that neither GMA nor Bostany was seriously interested in complying with the discovery request or the Court's Order. Given this willful behavior and the history of this case, the Court finds sanctions appropriate in this case. The Court will thus consider the appropriate sanction for this noncompliant behavior.
IV. DISCUSSION OF SANCTIONS
Rule 37 of the Federal Rules of Civil Procedure provides, in relevant part:
If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
An order . . . dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order . . . to pay the reasonable expenses, including attorney's fees caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an aware of expenses unjust.
Orders of dismissal or default are the "[h]arshest of all" sanctions available under the rule, see, e.g., Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979), and are to be used only after (1) the court finds willfulness, bad faith, or fault in the course of discovery and (2) the court gives notice that violation of the court's order will result in a dismissal of the case with prejudice. See Simmons II v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995). While dismissal and default are extreme remedies, "in this day of burgeoning, costly and protracted litigation, courts should not shrink from imposing harsh sanctions where . . . they are clearly warranted." Jones v. Niagara Frontier Transp. Auth., 836 F.2d 731, 731 (2d Cir. 1987). The Second Circuit has warned, "a party who flouts [discovery] orders does so at his own peril." Sieck v. Russo, 869 F.2d 131, 133 (2d Cir. 1989) (quoting Update Art. Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 73 (2d Cir. 1988)).
In American Cash Card Corp. v. AT T, 184 F.R.D. 521 (S.D.N Y 1999), the court outlined six factors to consider when contemplating the imposition of the litigation-ending sanction for discovery abuse:
(a) willfulness or bad faith on the part of the noncompliant party; (b) the history, if any, of noncompliance; (c) the effectiveness of lesser sanctions; (d) whether the noncompliant party had been warned about the possibility of sanctions; (e) the client's complicity; and (f) prejudice to the moving party.Id . at 524. The deciding court should also balance "the need for general deterrence and docket control" and "the preference for resolving cases on their merits." Id . With these guidelines, the Court will examine GMA's conduct in discovery.
A. Willfulness or Bad Faith; the History of Noncompliance
GMA's disobedience has been willful, as demonstrated by: (1) its repeated failure to comply with the Court's orders to supply defendant with the invoices at issue; (2) its obvious distortion of the facts in its submissions prior to the hearing surrounding Greek's investigation attempt; (3) its distortion to the courts in differing submissions regarding the "moose" invoices; and (4) its tactic of surprise unloading of the documents at the evidentiary hearing.
First, GMA was ordered by the Court to produce the invoices orally on April 16, 1999, and by written order on May 3, 1999. When GMA failed to do so, the Court issued a Show Cause Order on May 7, 1999. Following a conference with the parties, GMA agreed to allow an inspection by June 12, 1999, at a date proposed by Greek. At this point, GMA was on notice of the possibility of sanctions. The Court expected that GMA, having previously been ordered to produce the invoices, would take the necessary steps to insure they were available to defendant. This would include notifying appropriate personnel of plaintiff when and where the inspection was to occur and making sure that such personnel were available and prepared to assist so that the inspection went smoothly. It is obvious from the facts presented that at best GMA took a passive approach to the inspection. Given the Court's previous order to produce the subject invoices, GMA's behavior constitutes willful noncompliance.
More disturbing to the Court, however, is the behavior of GMA's counsel, John Bostany. Combining the talents of an old carnival huckster and an ancient Greek sophist, Bostany has undertaken to impose upon the Court a kind of shell game, using language to misdirect and mislead, until finally delivering the invoices to the courtroom. This dramatic flourish might be appropriate for Madison Square Garden, but not the Southern District of New York.
An examination of Bostany's submissions shows the continual pattern of deception.
1. Whitman's Visit to Secaucus
a. What GMA and Bostany Said
In Bostany's letter to the Court dated October 25, 1999, he states that Greek "wants us to believe that on July 1st his paralegal visited GMA for an inspection of documents, spoke to someone named `Mike.'" 10/25/99 Pl. Let. In his affidavit dated December 13, 1999, Bostany states that "Whitman claims that he spoke to a person named `Mike.'" Bostany Aff. at ¶ 11. In his affidavit dated November 3, 1999, William Maloof, the CEO of GMA stated that "on neither of those dates did the attorneys for the defendant arrive for an inspection." Maloof Aff. at ¶ 3.
b. Impressions Conveyed
These factual assertions and sworn statements suggest that: (1) no one named Mike works for GMA; and (2) no one appeared for defendant for the scheduled inspection.
c. The Truth
During the evidentiary hearing held on February 17, 2000, it was established that: (1) "Mike" is the name commonly used for Masoud Altirs, vice-president and warehouse manager for GMA; and (2) although he was not an "attorney," Eric Whitman, a paralegal employed by the attorneys for Greek, did appear, did talk to Altirs, and did indicate that he was there for an "inspection."
2. The Warehouse Address
a. What GMA and Bostany Said
In response to defendant's motion for sanctions, Bostany affirmed that "defense counsel annexed a copy of a voucher supposedly utilized by defense counsel's paralegal, Eric Whitman to arrive at the Secaucus' warehouse. The car service voucher, annexed hereto as Exhibit B, indicates that Mr. Whitman traveled to 231 Secaucus Road to conduct an inspection. Yet, the plaintiff's warehouse is located at 245 Secaucus Road." Bostany Aff. at ¶ 10. Bostany also makes the sworn statement that "[Whitman] allegedly arrived at 231 Secaucus Road and spoke to an individual named `Mike.'" Id . at ¶ II.
b. Impressions Conveyed
Bostany's sworn statements suggest that Whitman went to the wrong address and that this might explain the failed inspection.
c. The Truth
At the evidentiary hearing, it was established that both addresses belong to GMA and are merely separate entrances to a large building. In any case, Whitman appeared at both addresses on the scheduled day.
3. The Invoices for the "Moose" Floppy Friend
a. What GMA and Bostany Said
Bostany represented to Magistrate Judge Pisano in the District of New Jersey that "GMA moved its records to its corporate office in Secaucus, New Jersey earlier this year and in the process discarded all old (pre-1998) purchase orders and invoices." See Def. Mem., Exh. 21 at 2 (emphasis added). At the time of this disclosure on October 14, 1999, an Order from this Court was in effect requiring the discovery of invoices to be given by May 3, 1999. Included in this discovery would be the moose design, as it is a "Floppy Friend." Then, Bostany later retracted that statement, by stating to this Court that "[n]one of those invoices or purchase orders were destroyed as defense counsel suggests." 10/25/99 Pl. Let.
b. Impressions Conveyed
Based on the first assertion, it appeared that all invoices had been discarded. However, Bostany's later affirmation conveyed to the Court that GMA had not discarded any invoices, and therefore, the invoices were available for discovery purposes.
c. The Truth
At the evidentiary hearing, it was established that the "moose" invoices were indeed "lost," but the others were still in GMA's possession.
No statement, on its own and on its face, can be said to be an explicit lie by Bostany. However, counsel continually made statements to the Court regarding these incidents were designed to leave the Court with false impressions, when GMA and Bostany knew facts which contradicted these impressions. Calculated deception to the Court to this degree is not tolerable and is sanctionable.
To compound his transgression, without requesting permission or otherwise informing the Court or defendant, Bostany had a third party deliver multiple storage boxes of documents to the courthouse while testimony was being taken on defendant's motion. While Bostany contends this display exhibits GMA's good faith, the Court views it as a calculated stunt to sidetrack the issue of defendant's motion for sanctions in the midst of the presentment of evidence. Additionally, it underscores the relative ease with which this evidence could have been delivered to defendant, but was not. Throughout these discovery disputes, plaintiff has maintained that it was extremely burdensome to identify and/or copy the invoices. Even after this Court's Order to Show Cause of May 7, 1999, GMA kept up this mantra of burdensomeness at a conference before the Court. It therefore agreed to allow an inspection within "30 days." Despite these protestations, once GMA ascertained that the Court would actually hear the motion for sanctions, including dismissal, it somehow found the wherewithal to identify, copy, and deliver the invoices to the courtroom in a relatively short time period.
B. Client's complicity
Another factor that weighs in favor of imposing sanctions against GMA is the client's complicity. It is clear that GMA itself must share responsibility for the discovery failure herein. The testimony of two of the principals, Maloof and Altirs, makes clear that they were, at best, negligent in their response to the Court's Order to produce the invoices. Maloof, the chief executive officer, testified that he did not tell anyone at the Secaucus warehouse that someone was coming to inspect documents on July 1st, even though he could not continuously view the reception area from his office, and therefore was not able to see everyone who entered the premises. See Tr. at 75-76. Given the history of noncompliance in this case, such a cavalier approach to discovery would in itself be sanctionable. The Court, however, finds that Maloof's behavior consisted of more than mere negligence. It is simply not credible that a major discovery endeavor was not communicated to other personnel, including the custodian of the records. Maloof compounded his malfeasance by submitting an affidavit indicating that no "attorneys" arrived for inspection. This statement was obviously designed to mislead the Court.
The Court also finds not credible Altir's testimony that he was unaware of the inspection. It borders on ludicrous to suggest that he believed this "inspection" was for inspection of the warehouse lights, as suggested at the evidentiary hearing. See Tr. at 81.
For these reasons, the Court finds that plaintiff, through its officers, shared in the knowledge of the nonproduction of the subject invoices.
C. Prejudice to the Moving Party
Another factor weighing in favor of severe sanctions is that Greek has been prejudiced by GMA's nonproduction of discovery. Greek first sought the invoices on September 1, 1998. Now, more than eighteen months later, GMA dumps the files at the hearing on sanctions. Greek has had to devote extensive time and resources in trying to obtain the discovery at issue and the development of the case has been delayed.
D. Effectiveness of Lesser Sanctions; Warnings about the Possibility of Sanctions
In response to the motion, GMA denies that it violated an explicit court order, arguing that "defendant does not point to any order that was entered that required the plaintiff to produce its invoices in any fashion different than the way the plaintiff went about producing them." Pl. Mem. at 7-8. The Court does not accept this argument. At the April 16th conference, the Court ordered GMA to produce the invoices. This oral ruling was following by a written order, dated April 20, 1999. The May 7th Show Cause Order further mandated compliance by GMA to produce the orders. The fact that GMA and Greek agreed to an inspection of the documents, as opposed to photocopying them, does not excuse GMA from its obligation to produce the documents in some form. GMA argues that it is not responsible for the failed inspection "because the defendant did not ask for Maloof when its agents arrived at the warehouse." Id . at 4. As outlined above, the Court does not find this argument persuasive and holds GMA responsible for its failure to ensure the production of the discovery.
GMA further argues that Greek has not been "seriously prejudiced" by the discovery violation. The Court disagrees. A one and a half year delay in receiving the invoices is prejudicial. Moreover, Greek has had to spend considerable time and expense bringing this violation before the Court. GMA's eleventh hour delivery at the courthouse only serves to underscore the ease of which the discovery could have been produced, but was not.
Lastly, GMA argues that Greek failed to follow the proper procedure in resolving the dispute before making motions to the Court. GMA believes Greek's motion for sanctions was "unripe and malicious." See Pl. Resp. at 6. It relies on a recent decision of this Court, A.I.A. Holding S.A. v. Lehman Brothers. Inc., 2000 WL 98315 (S.D.N Y Jan. 26, 2000), for the legal principle that parties must meet and confer prior to making motions to the Court. In A.I.A. Holding S.A., the defendant moved for sanctions for discovery abuse and this Court found that, while abuse did occur in the case of one of the plaintiffs in the class, defendants should be admonished, and should not benefit from their exceedingly protracted motion practice. See id . Such is not the case here. Here, Greek has been seeking discovery compliance for more than one year. Each time Greek has agreed to modify its position to obtain the discovery to which it is entitled. The Court finds that GMA has made it clear that its agreements to cooperate were specious and designed only to delay.
"Pl. Resp." refers to GMA's reply memorandum of law in opposition to defendant's Rule 37 motion and in support of plaintiff's cross-motion for costs, filed March 15, 2000.
While GMA has not been subjected to sanctions in the traditional sense, its contumacious behavior has resulted in actions by the Court which acted as penalties for wrongful behavior. First, in November of 1998, Judge Knapp vacated the preliminary injunction in this case, when GMA failed to return customer lists to defendant. Second, in December of 1998, GMA was directed by this Court to notify 1,100 customers that they need not respond to the Amended Complaint because GMA used the customer list improperly. Next, in January of 1999, GMA's attempt to join these same customers as defendants was denied by this Court.
Moreover, GMA has engaged in the practice of brinkmanship, waiting until the last minute and then agreeing to a course of action to avoid sanctions. At the same time, GMA has filed numerous motions seeking sanctions against defendants, distracting both the Court and defendant. The net result is that the Court has not had the opportunity to gauge the effectiveness of sanctions less than dismissal.
In sum, sanctions against GMA are warranted. On this record, the Court does not find that the extreme measure of dismissal is called for. However, GMA has flouted its obligations and under such circumstances, an intermediate sanction is warranted. The Court considers GMA's noncompliance a continuing violation. Otherwise, GMA will be rewarded for last minute agreements which avoid sanctions, but only serve to delay production of the relevant documents. Because Greek had to bring the motion on more than one occasion, all of its efforts will be considered together. Greek is specifically not required to pay for any copying costs associated with the boxes delivered to the Court and may take possession of such boxes upon notice to the Court. The cost of retrieving and transporting the boxes shall be added to their costs associated with this motion. GMA will pay all of Greek's reasonable expenses incurred in seeking to have GMA produce the "Floppy Friends" invoices, and an additional $10,000. This specifically includes all letter requests and appearances at discovery conferences before the Court. Moreover, for his deception to the Court, effective "road-blocking" to this case, and tactical maneuvering regarding the boxes of discovery, the Court orders Bostany to pay $5,000 in sanctions. Bostany is also ordered to turnover to Greek any and all customer lists in its possession or being held by John W. Johnson.
Greek shall submit a summary of expenses and attorney's fees incurred in its attempt to procure the invoices.
V. CONCLUSION
For the reasons stated, defendants' motion for sanctions is GRANTED. GMA shall pay all of defendant's reasonable attorney's fees and expenses incurred in attempting to secure production of the "Floppy Friends" invoices, plus an additional $10,000. Additionally, the Court orders Bostany to pay $5,000 as a sanction for his misrepresentations to the Court and tactical maneuvering.
SO ORDERED
New York, New York