In Granados et. al. v. Traffic Bar and Restaurant, Inc. et. al., Case No. 13-0500 (S.D. N.Y., Dec. 30, 2015), a lawsuit filed by former employees of Defendants under the Fair Labor Standards Act (FLSA), Defendants failed to answer the lawsuit and the court entered default judgment against Defendants for failure to appear at the hearing on the request for default. Plaintiffs thereafter submitted documentation of their damages, but in January 2015, Defendants returned to court and asked that the default judgment be vacated. The court granted the request, and litigation followed. Plaintiffs propounded discovery requests upon Defendants, who responded with unverified answers and without documents only after Plaintiffs requested a court conference. Defendants advised the court that documents had been left at the “now defunct” bars and restaurants they operated and likely no longer existed.
Plaintiff filed a Motion to Compel and for sanctions, seeking paper documents and electronically stored information. Defendants failed to respond (and their counsel informed the court that Defendants were non-cooperative and that he intended to withdrawal as counsel).
The court granted the Motion with regard to turnover of documents and ESI production, ordering Defendants to produce documents within 14 days. The court declined to impose sanctions for spoliation because Plaintiffs could not identify what Defendants had destroyed or its relevance, and could not show bad faith. The court denied the request without prejudice, allowing Plaintiffs to renew the motion based upon the contents of Defendants’ future production.