EXHI IT
FILED: NEW YORK COUNTY CLERK 03/09/2016 04:56 PM
INDEX NO. 159042/2012NYSCEF DOC. NO. 306RECEIVED NYSCEF: 03/09/2016
FILED:
NEW
YORK COUNTY
CLERK
03 09
j
20l6 11:09
AM]
INDEX NO.
159042/2012
NYSCEF DOC. NO.
303
RECEIVED NYSCEF:
03/09/2016
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SUPREME
COURT
OF
THE
STATE
OF
NEW
YORK
NEW
YORK COUNTY
PRESENT:
Just ce
•V•
~
PART
INDEX
NO
/
r2
~-¥-
MOTION
D TE
MOTION SEQ
NO
QO
The
following papers, numbered 1 to were read on this motion tolfor Notice
of
Motion Order to Show
Cause
Affidavits
Exhibits Answering
Affidavits
Exhibits
-
Replying
Affidavits--
Upon the foregoing papers,
it
is ordered that this motion Is
Motion sequence 004 and 005 are consolidated and resolved
as
follows:
I
No(s) _ _
I
No(s).
1
No(s).
In
this action to recover monies paid for drug rehabilitation services for a family member, plaintiffs, Heidi Gore and Nathaniel
S.
Gore ( plaintiffs ) move to
(1)
strike the answer, affirmative defenses, and counterclaims
of
defendants Narconon
Gulf
Coast, Inc. ( Narconon ) and Debbie Ross ( Mrs. Ross ) (collectively, defendants ), or in the alternative, (2) deem
as
resolved issues
of
whether: (a) materials provided to patients were based upon the teachings
ofL.
Ron Hubbard and the Church
of
Scientology; (b) defendants have ties to the Church
of
Scientology; and (c) defendants' website disclosed the fact that Narconon's treatments were based on these teachings; or (3) preclude defendants from offering proof favorable to them on such issues; or ( 4) for an adverse inference at trial that the lost evidence was relevant and would have contradicted defendant's position; and (4) costs, expenses, and attorneys' fees (Seq. 004). By separate motion (seq. 005), plaintiffs also move for plaintiffs' expenses incurred and attorneys' fees and for sanctions against defendants for their frivolous conduct.
In
support
of
sanctions, plaintiffs argue that after two court orders to produce documents, the Court, by order dated March 1
7
2016, directed defendants to produce and recreate all relevant documents responsive to plaintiffs' request within 30 days and ordered that the failure
to
fully comply with this order shall result in the striking
of
defendants' answer, affirmative
Dated: _ _
----------
.S.C.
3
CHECK
IF APPROPRIATE:
................... ..............
0
SUBMIT
ORDER
[J
REFERENCE
1
of
7
defense, and counterclaims (the March 2016 order ). Plaintiffs contend that defendants produced documents and workbooks, which reference other workbooks and hardbound books that also exist, but were not produced. Thus, defendants' claim that there was nothing more to produce was disingenuous. Plaintiffs also point out that
:virs
Ross testified at her deposition that she burned everything and anything that said Narconon on it, and as to another book that she testified existed, no such book has been produced. Further, although Chris Ross (Mrs. Ross' son) testified at his deposition that that three
of
their website pages referenced defendants' use
ofthe
teachings
ofL
Ron Hubbard, none
of
the produced copies
of
the website show any reference to
L
Ron Hubbard or Scientology. Defendants were on notice
of
plaintiffs' complaint as early
as
2012. Thus, defendants' failure
to
maintain copies
of
their website leaves plaintiffs unable
to
challenge defendants' claim that the website disclosed the teachings
ofL
Ron Hubbard. Defendants' destruction
ofthe
materials possibly evidenced more direct ties to the Church
of
Scientology itself. The deadline
to
produce documents has expired, and thus, sanctions are warranted for defendants' violation
of
several court orders. Defendants oppose the motions, arguing that more than 5000 pages
of
documents were produced
to
plaintiff in addition
to
documents from email searches using search terms required
of
plaintiffs, course materials, tax returns, and documents responsive
to
plaintiffs' post deposition demands. The Court directed defendants
to
recreate documents after defendants advised plaintiffs that defendants destroyed the books related
to
Narconon International course work when they terminated their license agreement with Narconon in October 2013. Thus,
it
is
of
no
moment that defendants burned these documents, which is nevertheless in doubt based on Mr. Ross' testimony. And, there is no evidence that the destroyed documents were not recreated and produced to plaintiffs. Further, it would be unprecedented to strike a pleading based on a failure
to
produce a book which is available for sale on Amazon, and which defendants' counsel ordered. Plaintiffs misconstrue the deposition testimony
of
defendants, and evidence exchanged during the jurisdictional phase
of
this case demonstrate that defendants did not control its outside website vendor. Public policy favors deciding cases on the merits. Further, plaintiffs' motion
is
lacking a separate affirmation
of
good-faith effort
to
resolve the issues, as required under the Uniform Rules.
In
reply, plaintiffs add that defendants' eventual compliance with some
of
their discovery obligations
is
insufficient. It cannot be disputed that Mrs. Ross burned the documents at issue, and that defendants failed to recreate all documents reflecting the teachings
of
L
Ron Hubbard within the time frame as directed. Defendants used the entire library
ofL
Ron Hubbard's drug rehabilitation books that needed to br recreated. The fact that a book is available online is
of
no moment. Plaintiffs' counsel's affirmation explains the many efforts undertaken to obtain the discovery the subject
of
this motion. Plaintiff also requests attorneys fees and costs based on defendants' alleged frivolous conduct concerning discovery production.
Discussion
Courts have broad discretion
to
fashion a remedy for spoliation in the interest
of
justice
Ortega v City
o
New York,
9 NY3d 69 [2007]), generally finding that sanctions are warranted when prejudice
is
severe
see e.g., Kirkland,
236 AD2d at 175;
Squitieri v City
o
New York,
248
2
2
of
7