Sanctions for Contumacious Conduct- What It Means (Digital Edition)

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Application granted. It was ordered that respondent serve term of imprisonment of 14 days. Respondent wilfully and deliberately disobeyed order. Respondent clearly represented and held himself out to be paralegal, provided legal services by negotiating legal interests, rights or responsibilities of person, and represented person in proceeding, all contrary to s.

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While respondent had partially purged his contempt, he had not completely done. Period of incarceration was required. Financial penalty appeared to be ineffective as applicant did not pay fines. Under that sub-heading, the import of toys of wood It appears that earlier such imports were allowed under SIL. In the present case, the motorized 'talking parrot'toy was made of plastic which was covered by fabric.

Therefore, it was a toy covered by plastic and fabric. The reference stands answered accordingly. In view of the said decision of the Larger Bench, the Tribunal came to pass the following order Accordingly, the goods imported by the respondents, viz. This claim has been rejected by the Larger Bench. They were not importable otherwise than under specific licence.

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As the respondents did not produce any such licence, the original authority confiscated the goods under Section d of the Customs Act with option for redemption on payment of fine of Rs. The authority also imposed a penalty of Rs. This decision of the original authority was set aside by the learned Commissioner Appeals , who chose to classify the goods under ITC HS Heading Now that the decision of the original authority stands upheld, we set aside the appellate Commissioner's order and allow this appeal of the Department.

Heard Mr. In view of the said statement, this Court is not considering those questions of law, but is deciding the issue only on the question of penalty. He also noted that the defendants had failed to timely produce the photographs of the accident situs and the "video run" referenced in Scalia's report. The defendants, in opposition, contended that the discovery sanctions sought by the plaintiff were unwarranted because the late disclosure of this information was neither intentional nor willful, and had not caused any prejudice since the plaintiff could have conducted nonparty depositions of the witnesses at any point before trial, as the defendants had suggested to counsel during a conference.

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With respect to the photographs, the defendants stated that they, too, were provided well in advance of any trial date. The defendants also inaccurately represented that "several" of the witness names had been disclosed during Foronjy's deposition. They asserted that the failure to provide formal disclosure of the witnesses' names and addresses was inadvertent or, at worst, law office failure. The defendants also pointed out that the plaintiff served a supplemental response to the preliminary conference order on April 14, , including photographs of the accident scene and the plaintiff's injuries, and a supplemental medical disclosure, on October 4, , subsequent to the filing of the note of issue.

The Supreme Court, in an order dated January 31, , denied the plaintiff's motion. The court noted that the nature and degree of a penalty pursuant to CPLR is generally within its discretion.

11 F. 3d 1360 - Barnhill v. United States

It found that there was no showing of an ongoing pattern of willful and contumacious conduct designed to obstruct discovery. The plaintiff appeals. As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system see Gibbs v St. Barnabas Hosp.

The failure to comply with deadlines and provide good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims" see Gibbs v St.

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The Court of Appeals has also pointed out that "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules" Gibbs v St. In this case, the defendants failed to meet a clear court-ordered deadline for the production of discovery materials.

The preliminary conference order provided for the exchange of the names and addresses of all witnesses and photographs on or before January 12, The defendants did not provide the plaintiff with a response to this order until January 23, In addition, the record demonstrates that the service of the supplemental discovery responses was not contemporaneous with the defendants' receipt of the information and photographs disclosed so as to satisfy their continuing disclosure duty under CPLR h. As subsequent disclosure and the Scalia report demonstrate, the paralegal's response of January 23, , was in derogation of defense counsel's good-faith disclosure obligations.

The paralegal's representation that there were no materials or information responsive to the plaintiff's demands or the court's own order with respect to witness information or photographs—which counsel had consented to provide—was false and misleading. Regardless of whether the paralegal's representation was deliberately false, the response was totally unacceptable. Likewise, defense counsel's disingenuous denial of the existence of any photographs "upon information and belief," as set forth in his letter of June 9, , cannot be justified or condoned.

Although the defendants claim that their responses were merely careless practice, the record belies that claim. They were, in fact, intentionally false and misleading, and were interposed for the purpose of avoiding the defendants' obligation to provide timely and meaningful discovery responses see Kihl v Pfeffer, 94 NY2d at The defendants' neglect of a court-ordered deadline and misrepresentation of their knowledge or possession of clearly discoverable material and information, without providing any excuse for doing so, must be deemed willful and contumacious see Northfield Ins.

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Further, defense counsel's unsupported, conclusory claim of law office failure cannot be accepted see Wells Fargo Bank, N. Turning to the issue of the appropriate sanction to impose for the defendants' disregard of their discovery obligations, we are guided by CPLR , which provides: "If any party Similarly, the alternative remedy of preclusion may also be appropriate where "the offending party's lack of cooperation with disclosure was willful, deliberate, and contumacious" Assael v Metropolitan Transit Auth.

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Here, the defendants' pre-note of issue responses to the plaintiff's combined demands inaccurately asserted that they were unaware of any witnesses other than Foronjy, and later Danny Heffron, and that they were not in possession of any photographs. These responses were later revealed, by the defendants' own supplemental responses, to be misleading and false, as post-accident photographs, the video run, and witness statements of Danny Heffron, Brian "Evester," Guy Graziano, and David Shapiro were relied upon in the Scalia report.

Addresses for these witnesses, as well as their statements, in addition to the 18 digital images and video run relied upon by Scalia, were not provided to the plaintiff until the defendants served their supplemental response to the plaintiff's combined demands on June 15, , more than eight months after the filing of the note of issue, although that information was obviously available to the defendants prior to the date that the preliminary conference was conducted.

Contrary to the finding of the Supreme Court, this demonstrates an ongoing pattern of willful and contumacious conduct which served to obstruct discovery, notwithstanding the disclosure of some information responsive to the plaintiff's demand. Under these circumstances, it was an improvident exercise of the Supreme Court's discretion to have denied, in its entirety, the plaintiff's motion to impose sanctions upon the defendants pursuant to CPLR The defendants engaged in an ongoing course of conduct of delay and obfuscation during this litigation, including the provision of information which was inaccurate if not intentionally false, the neglect of a court-ordered discovery deadline, and the service of "corrected" information long after Foronjy's deposition was conducted and the note of issue filed.

This conduct merits the strong sanction of preclusion, with the defendants permitted to employ, at trial, only that which was disclosed in a reasonable and timely manner. While we acknowledge that the defendants attempted to correct their inaccurate discovery responses many months after the filing of the note of issue by serving supplemental responses, the belated corrections were inadequate to cure the prejudice to the plaintiff, who theretofore relied upon the truthfulness and completeness of his adversaries' proffer during the course of the litigation.

The rights of the demanding party to be able to fully prepare for trial simply cannot be protected by either belated corrective supplements or the hope of discretionary discovery while the action is on the trial calendar. The case at bar is readily distinguishable from the cases cited by the defendants, in which no sanction was imposed because full disclosure was made, albeit belatedly.