Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 1 of x. 12 Civ (VSB) (MHD)

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1 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KLIPSCH GROUP, INC., against- Plaintiff, BIG BOX STORE LTD. et - -x Defendants x MICHAEL H. DOLINGER UNITED STATES MAGISTRATE JUDGE: MEMORANDUM & ORDER 12 Civ (VSB) (MHD) Plaintiff Klipsch Group, Inc. commenced this lawsuit to press claims for trademark infringement as a result of defendants' sale of counterfeit headphones. Defendants have conceded that they sold some counterfeit headphones but assert that the sales were innocent errors and involved only a few stock keeping units ("SKUs" ), yielding almost no profit. Late in the discovery period, plaintiff has moved for discovery sanctions against defendants for spoliation of relevant documents as well as other discovery misdeeds. Its principal complaints are (1) that defendants failed to issue a hold or preservation directive on relevant documents when the lawsuit was filed, in August 2012, (2) that seven months later they issued only an ineffective oral hold that was limited to documents pertaining 1

2 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 2 of 21 to four SKUs that defendants asserted represented the only infringing sales, (3) that in the interim large quantities of documents (notably s) apparently were destroyed, and (4) that there is reason to believe that defendants have hidden or destroyed (and thus not produced) transactional documents that would reflect a far larger volume of sales of the infringing items than defendants report. (~, Pl.' s Mem. of L. in Supp. of Mot. for Sanctions, dated Dec. 9, 2013 (Dkt. No. 156) ("Pl.'s Mem.") at 19 25; Pl.'s Reply Mem. in Supp. of Mot. for Sanctions, dated Dec. 19, 2013 (Dkt. No. 175) ("Pl.'s Reply") at 2 10). Plaintiff also complains of a pattern of misstatements by defendants concerning both their business arrangements and the existence of documents relevant to its case. For relief, Klipsch seeks either summary judgment, preclusion of any evidence by defendants pertaining to the volume alternatively, a of their infringing sales or their profits, or, mandatory adverse-inference jury instruction. Defendants deny plaintiff's accusations and oppose the motion. (~, Decl. of John Basinger, Esq., dated Dec. 16, 2013 (Dkt. No. 169) ("Basinger Decl.") at " 2-3; Decl. of Daniel Chow, dated Dec. 17, 2013 (Dkt. No. 168) ("Chow Decl.") at " 3 14; Defs.' Mem. of L. in Opp'n to Mot. for Sanctions, dated Dec. 17, 2013 (Dkt. No. 170) ( "De f s. I opp' nil) at ). 2

3 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 3 of 21 I. Legal Standards The governing criteria in this area -- concerning both the obligations of litigants and the proper exercise of the court's discretion in the face of discovery misconduct are well established, at least in conceptual terms. Each litigant has an obligation to take reasonable measures to preserve all potentially relevant documents once it has notice that a lawsuit has been filed. Moreover, that obligation may arise even pre-suit, if "the party 'should have known that the evidence may be relevant to future litigation.,ii MASTR Adjustable Rate Mortgages Trust A2 v. UBS Real Estate Sees., Inc., 295 F.R.D. 77, 82 (S.D.N.Y. 2013) (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)}. Accord, ~, University of Montreal Pension Plan v. Bank of America Sees., LLC, 685 F. Supp.2d 456, (S.D.N.Y. 2010). "Spoliation is 'the destruction of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. '" MASTR Adj ustable Rate Mortgages Trust, 295 F.R.D. at 82 (quoting inter alia Byrnie v. Town of Cromwell Board of Educ., 243 F.3d 93, 107 (2d Cir. 2001}). If a party seeks sanctions based on a failure to preserve, or the destruction of, relevant evidence, he must demonstrate: 3

4 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 4 of 21 (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyedi (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (quotations omitted). The Second Circuit has held that the requisite "culpable state of mind" may encompass simple negligence, as well as gross negligence and, of course, deliberate misconduct, although the degree of culpability, in combination with the extent of the prejudice, may affect the choice of remedies. See, ~, Sekisui American Corp. v. Hart, 945 F. Supp.2d 494, (S.D.N.Y. 2013); MASTR Adjustable Rate Mortgages Trust, 295 F.R.D. at 84; Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D.2d 429, 438 (S.D.N.Y. 2010). The failure to place any litigation hold on documents at the outset of a lawsuit may constitute gross negligence, but that determination depends upon a contextual assessment of all pertinent facts. See Chen v. Port Auth. of New York and New Jersey, 685 F.3d 135, 162 (2d Cir. 2012). As for relevance, the moving party has the burden to demonstrate both that the destroyed materials meets the relevance standard of Rule 26(b} (1) - that is, that the lost documents could 4

5 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 5 of 21 reasonably have been expected to lead to the discovery of admissible evidence -- and that such evidence would have been favorable to the discovering party. See,, MASTR Adjustable Rate Mortgages Trust, 295 F.R.D. at (citing cases). That twin burden is "not onerous", at 86, however, since the adversary's failing in this respect is likely to make proof of what was contained in those materials notably difficult. To require a detailed showing in such circumstances poses the danger that "the spoliator [may] profit from its" own misconduct. (quoting Orbit One, 271 F.R.D. at 440). In any event, if the destruction of evidence was done in bad faith, that by itself justifies a finding that the material that was lost was relevant to claims or defenses in the case., Residential Funding, 306 F. 3d at 109. If the failure to preserve evidence reflects gross negligence, the court may draw the same inference, although that step should depend on how egregious the court views the discovered party's flings. See Chen, 685 F.3d at 162; Residential Funding, 306 F.3d at 109; (citing Reilly v. NatWest Markets Group, Inc., 181 F.3d 53, (2d Cir. 1999)); University of Montreal Pension Plan, 685 F. Supp.2d at ; Treppel v. Biovail Corp., 249 F.R.D. 111, (S.D.N.Y. 2008) (quoting Toussie v. County of Suffolk, 2007 WL , at *8 (E.D.N.Y. Dec. 21, 2007)). 5

6 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 6 of 21 If the moving party meets his burden to demonstrate that an adversary has failed to preserve relevant evidence or destroyed it or simply failed to produce it, the court has broad discretion in choosing appropriate sanctions to remedy discovering party. the injury to the, ~, Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) i Zebulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004). The general aim of any remedy must be to "(1) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore 'the prejudiced party to the same position [it] would have been in absent the wrongful destruction of evidence by the opposing party. '" University of Montreal Pension Plan, 685 F. Supp.2d at 469 (quoting inter alia West v. Goodyear ~±s~~~~~~~, 167 F.3d 776, 779 (2d Cir. 1999)); accord Chen, 685 F.3d at 162 (quoting Byrnie, 243 F.3d at 107). As a general matter, the court should determine the remedy "based on the relative fault of the party against whom sanctions are sought and the prejudice suffered by the party seeking sanctions." Treppel, 249 F.R.D. at (quoting Klezmer v. Buynak, 227 F.R.D. 43, 51 (E.D.N.Y. 2005)). The court should "impose the least harsh sanction that can provide an adequate remedy. II University of Montreal Pension Plan, 685 F. Supp.2d at 469. The available 6

7 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 7 of 21 remedies, from "least harsh to most harsh fl, start with ordering more discovery, and range to cost-shifting, to adverse-inference instructions, to preclusion and, finally, to entry of a default or dismis ("terminating remedies"). Id. (citing cases). Terminating remedies are justified, however, "in only the most egregious cases" -- if for example, "a party has engaged in perjury, tampering with evidence, or intentionally destroyed evidence by burning, shredding, or wiping out computer hard drives." Id. at & n.48. Apart from asking for a terminating remedy (in the form of summary judgment or, perhaps, a default), Klipsch seeks an order precluding defendants from offering any evidence as to the scope of their infringing sales and the profits derived from them. Alternatively asks at least for a mandatory adverse inference instruction to the effect that defendants engaged in substantially more infringing sales than they represent. (Pl.' s Mem ). Preclusion as "an extreme sanction in any case II, testimony -- characterized by the Second Circuit Outley v. City of New York, 837 F.2d 587, 590 (2d Cir. 1988) - is not routinely granted and is deemed appropriate only in limited circumstances, notably if the discovered party has failed to identify or produce a witness and then seeks to offer his testimony at 7 In the most common

8 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 8 of 21 formulation in this circuit, the court should base its decision on an assessment of "(I) the party's explanation for the failure to comply with [the disclosure requirement]; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to meet the new testimonyi and (4) the possibility of a continuance." Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)) (addressing Fed. R. Civ. P. 37(c) (1)); see Reilly, 181 F.3d at 269; Abu Dhabi Comm. Bank v. Morgan Stanley & Co., 2013 WL , at *9 n.84 (S.D.N.Y. Mar. 20, 2013). The circuit has emphasized in relevant terms that " [b]efore the extreme sanction of preclusion may be used by the dis ct court, a judge should inquire more fully into the actual difficult s which the violation causes and must consider s drastic responses." Outley, 837 F.2d at 591 (2d r. 1988). Ocello v. White Marine, Inc., 347 Fed. App'x. 639, 641 (2d Cir. 2009). As for the mandatory adverse-inference charge that plaintiff seeks here, to justify such an instruction based on document destruction, as we have noted, the moving party must show "(I) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were 8

9 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 9 of 21 destroyed 'with culpable state of mind' i and (3) that the destroyed evidence was 'relevant' to the party's claim or defense'". Treppel, 249 F.R.D. at 120 (quoting Residential Funding, 306 F.3d at 107; Byrnie, 243 F.3d at ). Such an instruction is ordinarily not appropriate unless the court determines that the offending party acted in bad faith or at least with gross negligence, and even if the court finds such gross negligence, the instruction should not be given without weighing all pertinent factors, including the degree of prejudice to the covering party. See,, Chen, 685 F.3d at 162 (citing cases) In contrast, a permissive adverseinference instruction does not amount to a sanction and hence does not require these findings., ~, Mali v. Fed. Ins. Co., 720 F.3d 387, (2d Cir. 2013). Plaintiff also suggests possibly as an alternative or supplemental remedy - - that the court authorize a compelled forensic search of defendants' various computer systems (1) to determine the extent of the loss of documents (including sales records as well as non-sales documents that may reflect the possible willfulness of the infringement), and (b) information. (PI.' s Mem. if possible, to recover some of the lost 24). Such relief, with or without cost shifting, is considered a lesser step and may be deemed simply an extension of otherwise permissible discovery. Treppel, 249 9

10 .' Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 10 of 21 F.R.D. at Finally, Klipsch asks for imposition of costs, including fees, on defendants for this motion and other remedial efforts undertaken by plaintiff. (Pl.' s Mem. 24). That may be appropriate based on discovery shortcomings by the discovered party even without reference to prejudice to the discovering party. I Residential Funding, 306 F.3d at 112i Curcio v. Roosevelt Union Free Schol Dist.,. 283 F.R.D. 102, 114 (E.D.N.Y. 2012). II. Assessment of the Motion We have reviewed the voluminous written submissions of the parties and have conducted an ext oral argument on all inent issues. (See Jan. 15, 2014 Tr. 3-86). Based on that record we conclude that there is no dispute that defendants failed to comply with their obligations to ensure the preservation of potentially relevant materials once simply imposed no hold at all. (Decl. of lawsuit was filed. They sa D. Keith, Esq., dated Dec. 9, 2013 (Dkt. No. 157) ("Keith Decl.") Ex. 19 at 69). We further find that defendants' belated oral instructions, given seven months r (id. Ex. 19 at 69-70), were inadequate both in form and in content, and conclude as well that there is evidence that substant quantities of potentially relevant corporate documents predominantly non-transactional s - were not served or 10

11 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 11 of 21 else simply not produced. id. Exs. 36 & 37). Moreover, given the scale of the defendants' business and the sophistication of s counsel, we find (a) that defendants' attorney gave instructions to the client that it must impose a hold to save pertinent documents, and (b) that defendants were fully capable of understanding those instructions and the consequences if they were disregarded. We further find that the oral document-hold instruction that defendants finally gave seven months too late was insufficient -- both because it was purely oral and because it was limited to documents directly pertinent to a handful SKUs rather to all of the issues raised by this lawsuit (including defendants' innocent or not-so innocent state of mind). short These circumstances must be viewed in conjunction with other Is in defendants' discovery performance, including a series of apparently misleading representations by defendants that they had no transactional documents other than the spreadsheets created for the litigation, their halting efforts to collect substantial quantit conducted depositions in Hong Kong, of documents until after plaintiff had and limitations placed by defendants on a computer inspection by the computer search company FTI, which was hired by defendants after the first round of Hong 11

12 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 12 of 21 Kong depos ions. The record thus leads to the conclusion defendants substant ly led to meet their obligations to preserve, search for and timely produce documents, and it offers as well at least a tentat basis to infer that this failing caused the loss or failure to produce relevant business documents that would have been favorable to plaintiff, notably with respect to whether defendants were operating a business that depended upon, or at least assumed, the s infringing products. 2 As for whether sales documents relating to the infringing products -- or other transact documents that would reflect the scale of the infringement -- were either destroyed or otherwise not produced, the record is far s clear. Defendants insist that no sales records were destroyed; indeed, they say that the company has a policy of preservation of such documents for seven years. (Chow Decl. ~ 5). Although they init ly produced no original sales documents, they repeatedly insisted at the time that their record 'Plaintiff argues as well that defendants have mischaracterized their relationship with two companies that plaintiff insists were the suppliers of the infringing products. (Pl. 's Mem. 9-11). Whether these entit s were actual suppliers or agents procuring supplies from various tories in China is not pertinent to the discovery issues here, and hence resolution of that controversy is left for another day. 2This inference is also supported by at t one item in the evidentiary record. (See Keith Decl. Exs. 36 & 37). 12

13 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 13 of 21 keeping system does not allow for production in hard-copy form of transactional documents since all information communicated and stored via a complex computer system that results in the data residing in a database from which only specially created documents can extract that data. (Keith Decl. Ex. 13; Apr. 17, 2013 Tr ). Hence, with respect to sales, they initially provided plaintiffs with spreadsheets created specifically for this I igation. (~, Keith Decl. Ex. 6 ~~ 5, 13 & Exs. A, D). Nonetheless, defendants very belatedly turned over some actual sales documents (Id. at Exs. 19, 20), thus indicating that their init representations about the non-existence of such documents were false. It also bears noting that defendants' failure to produce transactional documents on a timely basis and their denial that they existed ultimately required plaintiff to conduct two rounds of depositions in Hong Kong and thus to incur substantial additional expense. The first set, July 2013, were scheduled and conducted after defendants had repeatedly insisted that they had no independent transactional documents and could only prof spreadsheets produced early in the case. (See, ~, Apr. 17, 2013 Tr , 21; July 11, 2013 Tr. 3; Keith Decl. Ex. 13 at 4 5). At those depositions, pi the iff learned that this was not the case, 13

14 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 14 of 21 triggering a belated (and incomplete) search defendants' computers by FTI, which had been hired by defendants. The resulting late production in turn led the court to authorize a second round of depositions, which took place in November (Oct. 15, 2013 Tr ). All of this said, plaintiff has not as yet unearthed evidence that directly contradicts the defendants' narrative that they made only a handful of infringing sales, which yielded them profits in the three-figure range. Specifically, the documents now produced, as well as the spreadsheets earlier created, are consistent reflecting a very small quantity of s s. Nonetheless, given the discovery history - including a 1 of false and misleading representations by defendants -- there is evident uncertainty about the plaus lity, as well as the accuracy, of the defendants' current factual assertions about the scope of infringing resultant profits. sand Given the entire record, plaintiff has not justified its reque terminating remedy of judgment (whether by summary judgment or default). It has not as yet been shown that defendants have engaged in systematic bad-faith destruction of evidence or extreme misconduct, or that whatever loss of documents has been 14

15 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 15 of 21 occasioned has caused it irremediable prejudice. As for plaintiff's alternative demand to preclude defendants from offering any evidence pertinent to infringing sales and profits, again, plaintiff's showing falls well short of justifying such a step. As noted, there is no clear evidence that the documentation supplied by defendants as to infringing sales is incorrect, and -- as we shall see -- there is a less extreme remedy to test out the question of whether sales information has been suppressed or hidden. For now preclusion on the key issue of infringing sales and profits would have "an excessively harsh effect." Outley, 837 F.2d at 590. As for plaintiff's request for a jury instruction that defendants engaged in far more substantial sales than they have heretofore disclosed, the absence of clear evidence that this is true militates against such relief at this stage. As we have noted, even if we viewed the defendants' conduct as amounting to gross negligence, such an instruction would not be justified absent proof of prejudice that such a charge would be designed to remedy. Since it is not clear that transactional documents have been destroyed or hidden or that the production grossly understates the scope of the infringement and its financial consequences, the proposed instruction does not logically serve as a remedy for such discovery misconduct -- that is, the lack of a hold and the apparent loss of 15

16 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 16 of 21 at least non-transactional documents as the record suggests occurred. Rather than address the question of whether any jury adverseinference instruction may be appropriate now, we conclude that a more limited set of steps should be taken. SpecificallYI we authorize plaintiff to undertake a forensic investigation into the state of defendants I computer systems for the purpose of determiningl if possible, the li lihood of document destruction since August 2012, the 1 ly nature and volume of any such destroyed documents I recoveredl the status of the system of computers, whether any destroyed or simply not produced, whether some or all of those documents may be information in the defendants I inent sales data has been the recoverability of any destroyed sales datal and what any recovered sales data pertaining to infringing goods indicates as to volume I In authorizing this stepi which is among available remedies -- amounting in ef revenue and profits. the mildest of to authorization to the discovering party of leave to pursue additional discovery I see,, Treppel l 249 F.R.D. at we rely on a host of factors. These include: (1) defendants I failure to issue a timely or adequate hold (Keith Decl. Ex. 19 at 69) i (2) the record evidence suggesting 16

17 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 17 of 21 the likely loss of potentially significant corporate documents (mainlye mails) (id. at Exs. 36 & 37) i (3) the record evidence that defendants failed to make an adequate search for documents (including a suspect absence of documents from one of the key officers, who was involved in product development) (Supp. Decl. of Lisa D. Keith, Esq., dated Jan. IS, 2014 ("Keith Supp. Declo") Ex. 76 at 49, 56, 89, 91), (4) evidence of certain anomalies in the documents produced (including s that may have been altered, and contradictory or absent metadata) (Keith Decl. Exs. 28, 37, 38) i (5) various misstatements on behalf of defendants earlier in discovery concerning the non-existence of transactional documents (Oct. 22, 2012 Tr. 23; Apr. 17, 2013 Tr ), (6) defendants' use of the computer contractor FTI to verify the completeness of production, an exercise marred by defendants' stringent limitat on what FTI was to review (Keith Decl. Ex. 39 at 25, 42, 76; Oct. IS, 2013 Tr. 8 9) i and (7) incomplete production of documents even in the last few months, as reflected in defendants' counsel's most recent report of additional documents being unearthed. (See Jan. 30, 2014 letter from John Basinger, Esq.). Given all of these circumstances, a forensic search is fully justified both to determine whether additional key information can be located and, if not, the like degree of prejudice to plaintiff from apparent discovery shortfalls by defendants. See, 17, Treppel, 249 F.R.D.

18 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 18 of 21 at Because this search may shed light on the scope and nature of documents either destroyed or simply not produced, we refrain from ruling at this point on plaintiff's request for a mandatory adverse inference instruction on sales. We also leave aside for now the possible question of whether the court should provide a similar instruction as to any other issue. 3 We turn to the particulars of the forensic search that we authorize. At oral argument we directed the parties to propose a protocol. (Jan. 15, 2014 Tr. 86). Both sides have assumed that the search would be conducted by an independent expert as an arm of the court, but that the litigants would seek to agree on both the details of the protocol and the selection of an expert. That effort failed, with defendants suggesting a far more restrictive protocol than sought by the plaintiff, and with no reported agreement on the selection of an expert, or, seemingly, on the modality for choosing 3 Given our findings with respect to defendants' failings in preserving and producing non-sales documents, it is also possible that a non-mandatory adverse inference instruction will be appropriate. See Mali, 720 F.3d at Since, however, the parties have not addressed that question and since the forensic search may shed light on the extent of the loss, we do not consider it at this time. 18

19 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 19 of 21 one. (Compare Jan. 31, 2014 letter from G. Roxanne Elings, Esq.; Feb. 4, 2014 letter from John Basinger, Esq.; Feb. 5, 2014 tter from G. Roxanne Elings, Esq.). We conclude that the methodology for the search is properly defined by plaintiff's detailed protocol submission. (Pl.' s Proposed Forens Examination Protocol at ~~ 3 11). Of particular note, the search is properly addressed to more than a determination as to whether there were any sales beyond those specified by fendants. As noted, the defendants' conceded failure to preserve documents pertained, at the least, to s and other non-transactional materials, and hence the search must be defined to cover those materials, as they may reflect on other issues -- including possible willfulness as well as potent ly containing useful impeachment material. Moreover, in view of the array of separate computer systems employed by defendants and their employees, the search must, of necessity, cast a wider net than suggested by defendants. As for procedure, we believe, based on experience in this case to date as well as the equivocal state of the record, that the search should be carried out, on plaintiff's behalf, by an expert of its choosing, rather than deeming the expert to be court selected. To avoid conflicts, plaintiff is to identify its proposed 19

20 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 20 of 21 expert, with relevant background information, to defendants' counsel and the court within three business days. Unless defendants provide a compelling basis to object to that selection within three business days thereafter, plaintiff will be authorized to proceed with the search procedure outlined in an amended version of its protocol submission, which we have edited and signed contemporaneously with this Memorandum and Order. Defendants are to cooperate fully with that search, which is to be completed within forty-five days, with a report submitted to defendants' counsel and the court by May 5, The expenses of this search are to be borne in the first instance by plaintiff. Upon receipt of the expert's report, plaintiff may apply for the apportionment or reallocation of that expense as well as any other fee-shifting that it wishes to pursue in light of the actual problems in obtaining discovery from defendants. CONCLUSION For the reasons stated, the plaintiff's motion for sanctions is granted in part, to the extent stated. 20

21 Case 1:12-cv VSB-MHD Document 196 Filed 03/04/14 Page 21 of 21 Dated: New York, New York March 3, 2014 MICHAEL H. DOLINGER UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Memorandum and Order have been mailed today to: G. Roxanne Elings, Esq. Davis wright Tremaine LLP 1633 Broadway 27th Floor New York, New York John Basinger, Esq. Baker & McKenz LLP 452 fth Avenue New Yok, New York