Cosmopolitan Interior NY Corporation v. District Council 9 International Union…

Background

The defendant moved under Federal Rules of Civil Procedure 26(a)(1)(A)(iii) and 26(b)(1) to compel the plaintiff to provide a proper computation of its damages and the documents supporting that computation. The defendant also asked for additional time to complete discovery. The defendant said the plaintiff had identified lost profits from particular construction jobs but had supplied lists rather than calculations showing how the alleged losses were determined. It also argued that the plaintiff had not provided financial records showing labor and material costs, historical profit margins, or a basis for claimed future losses.

The plaintiff opposed the motion to compel but did not oppose extending the discovery period. It said that it had amended its initial disclosures to identify the affected jobs and calculate the value of the projects and lost profits. It also said it had produced contracts and termination correspondence for projects that ended, bids for projects it was not awarded, and records showing its prior work history with the relevant general contractors.

Legal standard

Rule 26(a)(1)(A)(iii) requires a party to provide a computation of each category of damages claimed and make available the documents or other evidentiary materials on which each computation is based. Rule 26(b)(1) permits discovery of nonprivileged information that is relevant and proportional to the needs of the case. Under Rule 37(a)(3)(A), a party may move to compel a required disclosure that was not made.

Court’s analysis

The court noted that the plaintiff did not comply with Local Civil Rule 7.1(b) because it filed no opposing memorandum of law. The court also found problems with the plaintiff’s counsel’s affirmation, including factual assertions made without personal knowledge and noncompliance with specified statutory requirements. Even putting those procedural problems aside, the court found that the plaintiff’s exhibits, to the extent they were intelligible, did not constitute proper and sufficient disclosures under Rule 26(a)(1)(A)(iii). The court further found that the plaintiff’s attempt to amend its disclosures after the motion was filed was untimely and did not cure the failures.

Disposition

The court granted the defendant’s motion to compel and for an extension of time to complete discovery. It extended the time for completing pretrial discovery activities for 60 days following the plaintiff’s production. The court warned that failure to comply with the order could result in sanctions, including the harshest sanctions.