For Discovery Violations, Court Sanctions Plaintiff and Counsel... Again

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009)

In this case, plaintiff Bray & Gillespie Management, LLC (“B&G”) sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004. Defendant, Lexington Insurance Company (“Lexington”), refused payment for several reasons, including its belief that the damages alleged were caused by two prior hurricanes and that the hotel at issue was not open at the relevant time. In this opinion, one of several addressing discovery issues in this ongoing litigation, the court addressed Lexington’s motion for sanctions following numerous discovery violations on the part of B&G and its counsel. The alleged violations revolved around the untimely production of “room folios” – evidence which would have shown who, if anyone, had stayed at the hotel following Hurricane Jeanne, and thus, the extent of the business interruption losses sustained. Finding in favor of Lexington, the court prohibited B&G from presenting evidence in support of their claim for business interruption losses, struck the portions of their expert’s report addressing that claim, and ordered B&G and counsel jointly and severally liable for Lexington’s reasonable expenses.

While the details are numerous, the crux of Lexington’s motion for sanctions was B&G’s failure to adequately and timely respond to discovery, including its failure to timely and diligently search for and produce requested room folios. Moreover, as established in the court’s opinion, plaintiff’s counsel acted in a “deplorable” manner by making misrepresentations regarding the completeness of plaintiff’s production and by purposefully delaying the production of the room folios in order to obtain strategic advantage during the deposition of Lexington’s expert witness, even in the face of numerous court orders directing

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Source: ediscoverylaw.com