2591028 Ontario Limited v. Advacare Inc.

Background

The plaintiff, 2591028 Ontario Limited, doing business as Focus Global, filed a motion seeking additional documents from Advacare Inc. The accompanying memorandum states that the underlying dispute concerns an alleged agreement for Advacare to purchase disinfectant wipes and Advacare’s alleged failure to accept delivery and pay the purchase price. The memorandum says the plaintiff requested documents concerning Advacare’s purchases and sales of the same or similar products, including documents covered by Request Nos. 6, 8, and 16–18.

Advacare had produced some documents. After the parties’ lawyers communicated about the alleged deficiencies, Advacare stated that it had no other responsive documents. The court’s order does not make findings about whether Advacare breached a contract or whether the requested documents existed.

Ruling

The court denied the motion to compel documents that Advacare claimed did not exist. The court separately ordered Advacare to produce, within seven days, an affidavit from a company officer. The officer must describe the scope of the search; when and where, specifically, it was conducted; who conducted it; whether the search was repeated in response to the plaintiff’s complaint; and whether a diligent search found any documents beyond those already produced.

The court allowed the plaintiff to depose the officer who signed the affidavit and any other people mentioned in it. The court also precluded Advacare from using at trial any document it had not produced. This was a discovery order and did not decide the parties’ underlying contract-related claims. Judge Alvin K. Hellerstein signed the order.