Free Motion to Compel - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF Document 30-5 Filed 05/23/2005 Page1 of 4
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Case 1:04-cv-01282-JJF Document 30-5 Filed 05/23/2005 Page 2 of 4
Not Reported in F.Supp. Page 1
1987 WL 6905 (S.D.N.Y.)
(Cite as: 1987 WL 6905 (S.D.N.Y.))
H Essentially, they reiterate his position that the
Massimi brothers are merely nominal officers of
Motions, Pleadings and Filings Hudson and that early in the case he learned that
"the Massimi brothers knew little or nothing about
Only the Westlaw citation is currently available. the legal and administrative affairs of Hudson." At
an early stage of the litigation, Shapiro was told by
Frederick Massimi, Jr. ("Frederick") that neither he
United States District Court, S.D. New York. nor his brother Gregory "knew the whereabouts of
STANDARD DYEING AND FINISHING the business documents, checks, correspondence,
COMPANY and Standard Textile Bonding memoranda, statements, etc., demanded in the
Company, case." Aug. 12 Aff. at 3.
Plaintiffs,
v. In response to the July 31 Opinion, Shapiro
ARMA TEXTILE PRINTERS CORP., and Hudson contacted Howard Nashel, co—defendant Am1a's
Valley Dyeing and Finishing Co., Inc., former attorney. Nashel indicated that the Massimi
Defendants. brothers` father testified at his deposition "that there
N0. 85 Civ. 5399-CSH. is a great deal of documents and papers on the
factory premises H which could conceivably have
Feb. l0, 1987. among them the papers which plaintiff was
seeking." Aug. 12 Aff. at 4.
MEMORANDUM OPINION AND ORDER
Shapiro also spoke again with Frederick after
HAIGHT, District Judge. receiving the July 31 Opinion. Frederick reiterated
that he knew "very little" about Hudson and did not
*1 Counsel have submitted additional papers on know where the requested documents were.
plaintiffs' discovery motion and Hudson's counsel's "Interestingly enough," Shapiro attcsts, "Mr.
motion to withdraw, pursuant to this Court's Frederick Massimi, Jr. also stated as he had done
Memorandum Opinion and Order of July 31, 1986. previously...that there is a great deal of papers,
Hudson and its counsel, Leonard Shapiro, were documents and records on the [Arma] factory
directed to submit affidavits in conformity with premises. As far as Frederick Massimi, Jr. was
Rule 34(b), F.R.Civ.P., detailing what efforts were concerned, all plaintiff need to do was to make an
made to comply with plaintiffs document request of appointment to examine the documents and he
December 2, 1985. Hudson was also directed to would be free to do so. to Aug. 12 Aff. at 5.
produce any requested documents which could be
located within fourteen days, or to specify why In a subsequent submission, Shapiro avers that he
those documents could not be so produced. I has failed to specify which of the sought—after
indicated that I would consider those affidavits in documents are on Arma's premises because neither
connection with Shapiro's motion to withdraw as he "nor the individuals available to him had any
well, since the principal basis of his motion was that such knowledge." Sept. 12 Aff. at 4. Shapiro
he had no knowledgeable client with whom he indicates that he showed the documents demands to
could consult. the Massimi brothers and they did not know where
they were. Sept. 12 Aff. at 5.
Hudson has submitted two affidavits by Shapiro.
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Case 1 :04-cv-01282-JJF Document 30-5 Filed 05/23/2005 Page 3 of 4
Not Reported in F.Supp. Page 2
1987 WL 6905 (S.D.N.Y.)
(Cite as: 1987 WL 6905 (S.D.N.Y.))
The Massimi brothers swear they have no Education v. Admiral Heatin and Ventilation, Inc.,
knowledge of Hudson’s affairs and do not know 104 F.R,D. 23, 36 & n.20 (N.D.Ill. 1984). If
where to locate the soughtafter documents. Yet Hudson has failed to maintain its records in a
Frederick told counsel that many of Hudson’s reasonable state, it must bear the burden of
records are at Arma’s plant, and Gregory has searching those available records for documents
testified that at some point he "went over" Hudson’s responsive to plaintiffs' Rule 34 (b) request.
books and records, though he never got into them in
detail. They remain officers of Hudson and Hudson is therefore directed to search the records
together own a majority of its stock. The at Arma's plant and any other available records, for
corporation has been sued, and the corporation has documents responsive to plaintiffs' request, and to
received a document request to which no objections make those documents available for inspection
have been made. within fourteen (14) days of the date of this
Opinion. At plaintiffs' option, Hudson may instead
*2 It is not sufficient for Hudson to point to a arrange for plaintiffs to inspect those records and
haystack of documents and to tell plaintiffs to provide such reasonable assistance as plaintiffs may
arrange with Arma for permission to find the require. Should Hudson fail to do so, I will strike
needles. Even if Hudson does not have actual Hudson's answer and grant plaintiffs judgment by
possession of the documents, it clearly has access to default against Hudson. See F.R.Civ.P. 37 (b) (2)
them and has the legal right to obtain them. As (c).
such, Hudson is responsible for producing them in
compliance with Rule 34. See, e.g., M.L.C., Inc. v. Rule 37(a) (4) requires an award of the "reasonable
North American Philips Corp., 109 F.R.D. 134, 136 expenses" of a successful motion to compel against
(S.D.N.Y. 1986). "the party ...whose conduct necessitated the motion
or the party or attorney advising such conduct or
Furthermore, Hudson must produce those both of them... unless the court finds that the
documents "as they are kept in the usual course of opposition to the motion was substantially justified
business or shall organize and label them to or that such other circumstances make an award of
correspond with the categories in the request." expenses unjust." Although I attribute no bad faith
F.R.Civ.P. 34(b). This provision was added to to Hudson's counsel, and will allow that his initial
Rule 34(b) to prevent parties from opposition to the December 2, 1985 request for
"deliberately...mix[ing] critical documents with production may have been "substantially justified"
others in the hope of obscuring significance." See by his client's confused state of affairs, I find
Notes of Advisory Committee on Rules for 1980 nothing in the record to substantially justify
Amendment to Rule 34, quoting Report of the Hudson's failure to attempt to locate the
Special Committee for the Study of Discovery sought—after documents at Arma after the July 31,
Abuse, Section of Litigation of the American Bar 1986 Opinion. That Opinion specincally noted that
Association (1977) 22. I do not suggest that Shapiro had "fail[ed] to indicate whether he or
Hudson has engaged in that device. However, either of the Massimi brothers ha[d] made the
where as here the state of the corporations records slightest effort...to search what is now Arma`s plant
would make it unreasonably burdensome for the for Hudson's old records." Slip Op. at 17. lt also
discovering party to search for the soughtafter directed Hudson to produce any documents which
documents, the burden falls on the discoveree to could be located within fourteen days or to show
organize the documents so that the discoveror may why they could not be so produced. Slip Op. at 18.
make "reasonable use" of them. 8 C. Wright, A.
Miller, & F. Elliott, Federal Practice and Procedure *3 Hudson now indicates that some records are,
‘j[ 2213 (Supp. 1986); Sherman & Kinnard, indeed, at Arma's plant, but has not examined those
Federal Court Discove in the 80's——Making the documents to see whether any are responsive to
Rules Work, 95 F.R.D. 245, 257-58. See Board of plaintiffs' requests or even offered to assist plaintiffs
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Case 1:04-cv-01282-JJF Document 30-5 Filed 05/23/2005 Page 4 of 4
Not Reported in F.Supp. Page 3
1987 WL 6905 (S.D.N.Y.)
(Cite as: 1987 WL 6905 (S.D.N.Y.))
in doing so. Therefore, I award plaintiffs its
reasonable expenses, including attorney’s fees,
incurred in the Rule 37 proceedings. Plaintiffs’
attorneys must prove the amounts by affidavits
accompanied by contemporaneous time records.
-Because counsel apparently failed to advise Hudson
of its Rule 34 responsibilities, counsel will be
jointly and severally liable for those expenses.
As to Shapiro’s motion for permission to withdraw,
I have concluded that despite his failure to justify
Hudson’s response to the document request, he
cannot be expected to litigate this case to its
conclusion given his client’s inability materially to
assist him. I see no reason, however, why Shapiro
cannot assist Hudson in complying with the
foregoing discovery order. When that search is
complete, Shapiro may so advise the Court and I
will grant his motion to be relieved. See D.R.
2-110 (C) (1) (C1). (C) (6)
Conclusion
Plaintiffs' motion to compel is granted. I award
plaintiffs the reasonable expenses of its August 27,
1986 submission, taxable against Hudson and its
counsel.
Shapiro's motion to withdraw is denied at this time,
subject to renewal after Hudson complies with the
foregoing discovery order or defaults thereupon.
The foregoing is SO ORDERED.
1987 WL 6905 (S.D.N.Y.)
Motions, Pleadings and Filings (Back to top)
• l:85CVO5399 (Docket)
(Jul. 16, 1985)
END OF DOCUMENT
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