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(FILED: WESTCHESTER COUNTY CLERK 1271272014 08:11 PM INDEX NO. 55391/2011
NYSCEF DOC. NO. 2071 RECEIVED NYSCEF: 12/12/2014
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF WESTCHESTER
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FREDERICK M. CIOFFI and ELISABETTA CIOFFI,
Plaintiffs, AFFIRMATION AND
MEMO IN SUPPORT
-against- OF MOTION TO
STRIKE AND COMPEL
COMPLIANCE WITH
S.M. FOODS, INC., GFI BOSTON, LLC, DISCOVERY ORDERS
ATLANTA FOODS INTERNATIONAL,
RUSSELL McCALL’S INC., RUSSELL McCALL’S INC. Index No.: 55391/2011
d/b/a SHEILA MARIE FOODS, SHEILA MARIE
IMPORTS, DOUG JAY, RYDER TRUCK RENTAL, INC.,
PLM TRAILER LEASING and DANIEL E. BURKE,
Defendants.
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S.M. FOODS, INC., GFI BOSTON INC., LLC, PLM
TRAILER LEASING and DANIEL BURKE,
Third-Party Plaintiffs,
-against-
VILLAGE OF TUCKAHOE and VINCENT PINTO,
Third-Party Defendants.
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nna,
JONATHAN RICE, an attorney duly admitted to practice law in the courts of the
State of New York, hereby affirms the following under the penalties of perjury:
1 Lam trial counsel to Grant & Longworth, LLP, attorneys for the plaintiffs
and as such I am fully familiar with the facts and circumstances of this action. I submit
this affirmation in support of this motion to strike the answers of all the defendants, and
in particular the answers of defendants ATLANTA FOODS INTERNATIONAL,
RUSSELL McCALL’S INC. (hereinafter “RMI”), RUSSELL McCALL’S INC. d/b/a
SHEILA MARIE FOODS, and DOUG JAY (hereinafter collectively, “Atlanta
defendants” or “RMI” or “AFT”) for repeated willful and contumacious refusals and.
failures to provide discovery responsive to plaintiffs’ demands including court ordered
discovery in violation of, inter alia, SIX (6) court orders, or in the alternative to preclude
defendants from offering evidence at trial to refute plaintiffs’ allegations, or in the further
alternative to compel that discovery which remains outstanding in violation of court
orders.
2 Plaintiff respectfully requests that this Court strike defendants’ answer
and/or preclude for the following conduct:
a. Violation of discovery orders and failure to produce documents responsive
to those discovery orders.
j, Decision and Order dated September 27, 2012 (NYSCEF Doe. #
163). Annexed hereto as Exhibit A.
i. Decision and Order dated February 11, 2013 (NYSCEF Doc. #539).
Annexed hereto as Exhibit B.
iii. Decision and Order dated May 20, 2013 (NYSCEF Doc. # 658).
Annexed hereto as Exhibit C.
Iv, Decision and Order dated October 16, 2013 (NYSCEF Doc. #929).
Annexed hereto as Exhibit D.
y. Decision and Order dated November 7, 2013 (NYSCEF Doc. #
1034). Annexed hereto as Exhibit E.
vi. Decision and Order dated January 22, 2014 (NYSCEF Doc. # 1227).
Annexed hereto as Exhibit F.
vii. Decision and Order dated October 20, 2014
b. Willful and contumacious failure and refusal to provide responses (in whole
or in part) to numerous demands (Exhibit H, I, J, K, and L);
Bad faith concealment of relevant information including failure to disclose
the name and position of Leslie Allen and records of defendants that they
have allowed to be turned over to their agent/employee Leslie Allen who
had an email address at Atlanta Foods International
(lallen@atlantafoods.com) and served as Transportation Manager and was
in charge of Safety and Compliance for all of AFI’s operations in at its
Headquarters and various divisions including Sheila Marie Imports
Division (Division 4).(Pursuant to testimony of Doug Jay and discovery
responses from defendants, Ken Swords was supposedly the Atlanta
defendants “safety inspection” and in charge of all things having to do with
DOT/Federal Motor Carrier Safety Administration Compliance. At the
recent deposition of Ken Swords, Mr. Swords denied being responsible for
this function and identified Leslie Allen as being the person who handled
this function.)
d. Violation of the October 20, 2014 order of this court in that the Atlanta
Defendants have failed to produce records in their custody, possession and
control (including records in the possession of their agent Leslie Allen who
is or was reportedly the Transportation Manager for AFI and its various
divisions at the time of the events giving rise to this lawsuit and thereafter.)
Failure to produce Ken Swords and Dan Crowley for completion of their
depositions.
Failure to provide full and complete responses to plaintiffs 3° and 4"
Interrogatories to defendants and for bad faith failure to respond to the
same for months and they providing deficient responses on the eve of a
deadline by this court for plaintiff to serve a motion addressing the same in
a manner designed to prevent plaintiff from including objections and claims
about defendants disclosure deficiencies in a timely manner to this court.
(Note that plaintiff served these interrogatories on May 8, 2014, the court
issued a scheduling order on May 29, 2014, plaintiff’s deadline to file a
motion was June 16, 2014 and defendants served specious improper non-
responses on Jun 18, 2014. This was designed to frustrate disclosure,
prevent timely addressing of these issues by the court and counsel for
plaintiff.)
Failure of defendants to produce various documents central to the issues in
this case including but not limited to the following:
i. Driver Handbook of AFI in use in the Massachusetts operations of
AFI (Sheila Marie Imports from January 1, 2008 through the date of
cessation of operations in Massachusetts.)
i. Original personnel file (qualifications file) for Daniel Burke due to
belief by counsel that photocopies produce by defendants may not be
accurate including that the same appear to have documentation cut
off and the papers appear to have been re-copied.
iii. Failure to produce original emails, including emails directed by this
court to be produced, that appear to be altered and are not original
strings of emails and have information removed from the printout of
the document (including the fact that emails from years ago appear
now to be printed out with email information from Terrance Quinlan
indicating that the original emails were not printed out in their
original state and condition.
Vv. Failure to produce speed limit acknowledgement documents that
were part of the hiring/employment package from Atlanta Foods
International and was supposed to be signed by all drivers at AFI's
Sheila Marie Division. These documents should be produced for
Daniel Burke and all other AFI’s Sheila Marie Imports Divisions
drivers from October 2007 through to the termination of operations
of the Sheila Marie Division in 2012.
y. Failure to produce original employment application for Daniel Burke
and all other AFI Sheila Marie Imports Divisions drivers from
October 2007 through to the termination of operations of the Sheila
Marie Division in 2012 given that the original employment
application lists Russell McCall’s, Inc and Atlanta Foods
International as the employer.
Vi Failure to disclose the DOT/Motor Carrier regulatory and
compliance documentation and related documentation that should be
in the possession of the defendants that this court directed be
produced pursuant to its October 20, 2014 order and prior orders of
this court.
vii. Failure to provide authorizations for FMCSA records pursuant to
Tuly 2014 demands.
3. In addition, the instant motion filed by plaintiff seeks sanctions against the
Atlanta defendants represented by the firm of White Quinlan & Staley, LLP. The history
of discovery in this case has been replete with withholding of discovery time and again
by the defendants collectively. Sanctions are warranted given the fact defendants have
refused to provide good faith disclosures, submitted false and misleading information in
affidavits submitted to the is court and provided false and misleading testimony in
depositions in this case including on the following:
Misrepresentations by the Atlanta defendants that there was no basis for
corporate liability claims because RMI’s business was “completely
separate” from that of GFI Boston which discovery has revealed was a total
misstatement;
The nature, timing and extent of the takeover and acquisition by the Adlanta
defendants of SMI’s business and it’s conversion into an RMI division as
evidenced by John Greeley’s testimony;
The extent to which operations, communications, computer systems, and
management were integrated, shared and commingled between the Atlanta
defendants and its divisions as evidenced by the contradictory testimony
between John Greeley, Dan Crowley and Doug Jay;
The fact that all GFI Boston records (all hard copy records were
transferred although defendants previously had those records both in hard
copy form in Atlanta and the key documents were scanned in and stored
digitally in Adanta per Dan Crowley; additionally it seems other key
documents were transferred to AFI’s internal compliance and transportation
department and then were claimed to not be in defendants possession
because the same were in the custody, possession or control of Leslie Allen
defendants agent whom they control and still employ) were transferred to
RMI headquarters in Atlanta in 2011 and that this involved 250 boxes of
cords with computers and this fact — incredibly - was not disclosed until
2013;
Misleading plaintiffs and the court regarding the Atlanta defendants’
possession of GFI Boston records by repeatedly responding to discovery
requests by claiming GFI Boston was wholly responsible for those
records/information and that the Atlanta defendants did not have access to
such records/information; meanwhile GFI Boston had already transferred
all its files to Atlanta in 2011;
The failure to advise of the head of safety and motor carrier compliance for
the Atlanta defendants including Leslie Allen whose identity was only
revealed as of Ken Swords November 2014 deposition;
The failure and refusal to promptly reveal personnel with knowledge of the
Adanta defendants’ operations including failing to advise of Tim White’s
operational involvement in RMI’s divisions;
4 Conditionally striking defendants’ answer and making such order self-
executing unless the defendants do the following:
a. Produce the records directed by this court to be produced and the records
further specified herein to be produce by a date to be determined by the
court.
Producing all leases including master leases used to rent, lease, maintained
and fuel vehicles used in the Massachusetts operations of AFI/Sheila Marie
Imports for the period October 1, 2007 until 2012 when AFI/Sheila Marie
Imports allegedly ceased its operations.
Directing defendants to provide documents and information requested in
the Discovery demands dated December 12, 2014 (Exhibit Y) that seek
information that was concealed by defendants from plaintiffs and this court
previously;
Produce Dan Crowley and Ken Swords for completion of their depositions;
Provide plaintiffs with any documents the defendants obtained via
subpoena.
Provide authorizations for FMCSA records pursuant to July 2014 demands
5 Finally, plaintiffs seek to compel the deposition of Leslie Allen, agent and
employee in fact or in law of the Atlanta defendants.
6. Plaintiff's incorporate by reference herein the arguments contained in
plaintiffs’ e-filed motion papers for motion sequence #32, #33 and #36 which detail all
the discovery abuses and willfully noncompliant conduct engaged in by the Atlanta
defendants. Those motion papers also detail bases for finding that all discovery sought is
material, relevant and discoverable given plaintiffs’ allegations against the Atlanta
defendants for abuse of the corporate veil, successor liability, de factor merger, alter ego
theory, improper use of motor carrier operating authority, domination and control of
subsidiary/alter ego defendants SHEILA MARIE IMPORTS (hereinafter, “SMI’), S.M.
FOODS, INC. (hereinafter “SM Foods”), and GFI BOSTON, LLC (hereinafter, “GFI
Boston”).
7 Additionally, plaintiffs incorporate by reference herein the attestations of
trucking and motor carrier expert Brooks Rugemer in his affidavit annexed hereto as
Exhibit M.
STANDARD OF REVIEW
8 Plaintiff’ s motion should be granted in its entirety because plaintiff’ s
motion has been made in good faith, with numerous attempts to resolve discovery issues
both with and without court intervention throughout the course of approximately five (5)
years of litigation. 22 N.Y.C.R.R. § 202.7(a); Charter One Bank SSB v. Houston, 300
A.D.2d 429, 430 (2™ Dept., 2002) (Moving party entitled to relief where a good faith
effort has been made to resolve the discovery disputes).
9 Yet, the defendants, and in particular the Atlanta defendants, have
repeatedly obstructed discovery progression and in many instances willfully refused to
comply with court orders.
10. There are literally dozens of letters whereby plaintiff is requesting
outstanding discovery from defendants in good faith and requesting compliance with
defendants’ court ordered obligations. Good faith letters annexed hereto as Exhibit H.
li. As will be further detailed below, significant aspects of plaintiffs’ varied
demands, letters and the court's orders have been contumaciously ignored by defendants
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12. Although striking a pleading is a drastic remedy, it is warranted “where a
clear showing has been made that the noncompliance of the discovery order was willful,
contumacious or due to bad faith.” Patterson v. New York City Health and Hospitals
Corp., 726 N.Y.S.2d 715 (2™ Dept., 2001); Mateo v. City of New York, 274 A.D.2d 337,
(1* Dept., 2000).
13. Willful, contumacious conduct occurs when there are repeated violations
without justification. Longo v. Armor Elevator Co,, 763 N.Y.S.2d 597 (1 Dept., 2003).
Willful, contumacious conduct occurs when a defendant engages in dilatory tactics and
repeatedly refuses to provide discovery, including a deposition. Wilson v. Galicia
Contracting and Restoration Corp., 779 N.Y .S.2d 527 (2d Dept. 2004) (where answer
was stricken because answering party engaged in a two-year pattern of failure to respond
to demands, court orders, and conditional orders with no reasonable excuse); Abouzeid v.
Cadogan, 737 N.Y.8.2d 634 (2"™ Dept., 2002) (offending party failed to comply with four
court orders with no excuse offered); Appler v. Riverview Ob. & Gyn., P.C., 780
N.Y.S.2d 188 (3 Dept., 2004); Ortiz v. Weaver et al., 590 N.Y.S.2d 474 (i* Dept.,
1992) (where defendant’s behavior was considered dilatory and obstructive because
defendant did not respond to discovery requests, in whole or even in part and even
ignored court-ordered enforcement).
14. The Atlanta defendants have engaged in conduct that mirrors and even
exceeds the conduct in the above cited cases. Their conduct is at least as egregious, if not
more egregious, than the defendants whose answers were stricken in those cases. Asa
il
result, this Court should follow Appellate Division precedent and grant plaintiff’s motion
to strike defendants’ answer in its entirety.
BRIEF PROCEDURAL HISTORY
15. As this Court is well aware, this action arises from a motor vehicle accident
which occurred on May 22, 2009. Plaintiffs commenced an action by filing a complaint
with this court in September 2009. In connection with that action, plaintiffs’ served
Notices to Produce dated June 22, 2010, July 9, 2010, and August 4, 2010. Plaintiffs’
discovery demands from 2009 action annexed hereto as Exhibit I.
16. As will be further outlined below, the Atlanta defendants’ pattern and
practice of willful withholding of discovery began at the outset with inadequate responses
to plaintiffs’ 2010 demands.
17. By stipulation dated May 2011, the 2009 action was discontinued without
prejudice and the instant action was commenced by filing of summons and complaint in
September 2011. Plaintiffs served a Second Notice to Produce dated May 31, 2011
(Exhibit J) which garnered insufficient responses. Thereafter, plaintiffs served
Plaintiffs’ Notice to Produce dated April 30, 2012 (Exhibit K). Defendants failed to
adequately respond to these demands. As a result, plaintiffs were forced to resort to
motion practice. Plaintiffs filed a motion to strike and the court declined to strike the
answer by otherwise intervened by decision dated September 27, 2012 (Exhibit A)
ordering defendants to provide discovery.
18. The Atlanta defendants continued to fail to provide adequate discovery
responsive to plaintiffs’ demands and failed to comply with the September 27, 2012
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order. The plaintiffs were forced to file yet another motion to procure compliance.
19. By Decision and Order dated February 11, 2013 (Exhibit B), the Court
ruled that the Atlanta defendants did not sufficiently comply with discovery obligations
and the Atlanta defendants were ordered to provide supplemental and additional
responses.
20. And yet again, the Atlanta defendants failed and refused to comply with
this second court order.
21. Plaintiffs then served additional discovery responses (plaintiffs’ third,
fourth, and fifth notices to produce annexed hereto as Exhibit L) which were again
inadequately responded to by the Atlanta defendants.
22. The court had to intervene now for a third time in the 2011 action due to
defendants’ willful failure and refusal to comply with discovery demands. By decision
and order dated May 20, 2013, the court ordered that the defendants shall respond to the
third, fourth and fifth notices to produce on or before June 5, 2013 (Exhibit C).
23. The willful and contumacious failures to comply with discovery obligations
on the part of the Atlanta continued and the court intervened again on October 17, 2013
(Exhibit D). The plaintiffs were ordered to provide an amended Fourth Notice to
Produce by October 21, 2013 and thereafter, defendants were to respond by October 31,
2013. (Finally at this time were some relevant documents produced some two years after
plaintiff started requesting critical documents in this action; and after several years of
non-production of documents in the previously filed lawsuit involving these same
parties.) In essence defendants withheld key records for 3-4 years prior to making any
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truly relevant disclosure and that disclosure in October 2013 revealed and began to reveal
how the defendants had set up and operated this integrated national food distribution
business concealing from the court and federal government who was operating and
controlling the motor carrier supposedly doing business as Sheila Marie Imports.
24. Then, by decision and order dated November 7, 2013 (Exhibit E), due to
continuing non-compliance by the Atlanta defendants, the Atlanta defendants were
ordered to provide on or before December 6, 2013 an affidavit from a person with
knowledge detailing whether the items previously requested by plaintiffs still outstanding
pursuant to Plaintiffs’ Notice to Produce dated 4-30-12 and the Court’s 9-27-12 Order
25, Then, by decision and order dated January 22, 2014 (Exhibit F), due to
further non-compliance by the Atlanta defendants, the court ordered the Atlanta
defendants to provide plaintiffs a supplemental response to plaintiffs’ Amended 4e
Notice to Produce (to be provided on or before March 3, 2014). The Atlanta defendants
failed and refused to fully comply thereafter.
26. Additionally, plaintiffs served a third and fourth Set of Interrogatories
(Exhibit L), both dated, May 8, 2014. Defendants failed to adequately respond and has
yet again forced motion practice on the part of plaintiffs by the herein motion.
27, Finally, due to the Atlanta defendants’ continuing non-compliance and
refusal to provide relevant discovery, further motion practice (motion sequences #32 and
#33) resulted in this Court’s October 20, 2014 order (Exhibit G). The plaintiffs are
presently seeking to reargue portions of this order denying plaintiff's access to material
and relevant discovery by motion sequence #36. Arguments from motion sequences #32,
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#33, and #36 are incorporated by reference herein.
ARGUMENT.
28. Given the long history of willful, inexcusable and contumacious refusals
and failures to provide material, relevant, and court ordered discovery, the defendants’
answers should be stricken in their entirety or in the alternative, precluded from offering
evidence at trial to refute plaintiffs’ allegations; specifically, those that assert that the
Atlanta defendants were operating as the motor carrier responsible for the subject injury-
causing truck and that the Atlanta defendants completely dominated and controlled GFI
Boston and/or SM Foods and/or SMI and abused these corporate forms to a degree that
warrants piercing of the corporate veil. Wilson v. Galicia Contracting and Restoration
Corp., 719 N.Y.S.2d 527 (2d Dept. 2004) ; Abouzeid v. Cadogan, 737 N.Y.S.2d 634 a"
Dept., 2002); Appler v. Riverview Ob. & Gyn., P.C., 780 N.Y.S.2d 188 (3 Dept., 2004);
Ortiz v. Weaver et al., 590 N.Y.S.2d 474 Dept., 1992).
29. Moreover, a large portion of the discovery that remains outstanding include
records that the federal government requires be generated and maintained in connection
with motor carrier operations. If any of the defendants are claiming that any of these
federally required documents do not exist, an affidavit attesting to the search as well as an
explanation for their absence must be provided to plaintiffs. Additionally, plaintiffs
should be afforded a negative inference against defendants with respect to any document
defendants fail to provide. For instance, if defendants fail to provide federally mandated
drug screening records for Daniel Burke, then the court should order an inference be
imposed that Daniel Burke did not pass the pre-hiring drug screening and was
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nevertheless improperly hired by the defendants in violation of federal law.
30. Additionally, the court is reminded that the Atlanta defendants are
purportedly in possession of all of defendant GFI Boston’s records (approximately 250
boxes of records) which were transported down to Atlanta’s headquarters after the
closing of the GFI Boston division. The Atlanta defendants did not advise of this fact
until 2013. That is a serious disregard of CPLR 3101 full disclosure obligations.
31. The Atlanta defendants have repeatedly shown throughout this litigation
that they will willfully and contumaciously withhold and misrepresent information. Just
some of the mistepresentations are evident from cursory analysis of deposition transcripts
alone. Defendants further have failed to supplement or amend any of their prior
responses even though this is a self-executing aspect of CPLR 3101 and all parties are
required to do so in good faith. Here the defendants have known their responses to be
deficient and they have attempted to and have misled this court on how their company
was run and operated and where the records are relating to the location of those
documents. Defendants had them all the time. If they did not physically have them on
their premises, they were stored and are stored in defendants’ servers and back up drives
per testimony of Dan Crowley. Additionally, the documents and information sought
would also be in the possession of defendants Transportation Manager Ms. Leslie Allen
or her company that was created at some point. Ms. Allen, however, still works for
defendants and used an AFI email address to communicate with persons in the AFI
system of companies to address and handle the regulatory and compliance aspects of
motor carrier operations.
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32. Although the Atlanta defendants have repeatedly insisted that RMI did not
distribute product out of Boston and rather Boston operations were run independently and
completely separate as its own company called GFI Boston, Doug Jay almost
immediately contradicts these denials at the start of his deposition in 2011. He
characterizes GFI Boston LLC as a distribution point that he personally managed.
Exhibit Z, p. 11-12.
33. Furthermore, as much as Doug Jay tried to separate himself from Boston’s
operations, he stated that everybody at GFI Boston works for John Greeley and Greeley
works for Doug Jay. Exhibit Z, p. 34. In other words, Doug Jay testified he controlled
John Greeley, who controlled GFI Boston. This is what a Manager of an LLC does and
why a “Manager” of an LLC is the person designated in the corporate paperwork and
under state law as the person operating and controlling an LLC. Doug Jay weakly tries to
separate the Atlanta defendants from GFI Boston by offering Greeley as the middle man
but it is a transitive relation nonetheless, inextricably tying Doug Jay and the Atlanta
defendants to GFI Boston’s operations.
34, Moreover, he confirmed that the “Atlanta” accountant did the annual
accounting and books for GFI Boston after RMI’s involvement in 2007. Exhibit Z, p. 50.
The same accountant was doing the books for both RMI and GFI Boston.
35. Doug Jay testified RMI does not sell products under the Sheila Marie trade
name and merely bought and sold products from Sheila Marie. Exhibit Z, p. 53-55. This
is clearly false — website information shows RMI represented itself as having fully
acquired SMI and that it had commandeered use of the trade name. Website information
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annexed hereto as Exhibit DD. Doug Jay testified only GF! Boston uses the Sheila
Marie trade name. Exhibit Z, p. 56.'
36. Atlanta personnel did not communicate with Tony DeMarco who was in
charge of operations in Boston. Exhibit Z, p. 57-58. This directly contradicts J ohn
Greeley’s testimony who said Anthony DeMarco coordinated with Ken Swords (head of
distribution and trucking operations for AFI) and they assessed SMI’s trucking operations
and coordinated with each other regarding such issues as motor carrier operations.
Greeley EBT, p. 72-74.
37. Doug Jay claims RMI and GFI Boston’s operations were “very, very
separate” but had difficulty providing a straight forward answer when asked whether they
shared computer systems, specifically in regard to orders and invoices. Exhibit Z, p. 78-
719, As we know from Dan Crowley and John Greeley’s testimony, Doug Jay
misrepresents the facts because the operations between divisions and RMI were not
separate and computer systems were indeed shared and all centralized out of Atlanta. In
fact all orders were centralized in Atlanta and all customer files and information was fully
integrated into a massive national database and Enterprise Software system that allowed
for fully integrated ordering, customer service, accounts payable, accounts receivable,
logistics and accounting of all sorts including creation of a general ledger.
38. Doug Jay confirms that ADP handled employee payroll for RMI and GFI
Boston but claims RMI funds were not used to pay GFI employees and that ADP had
' RMI/AFL has used this name in its internet transactions, in its catalogues and on its websites. Plaintiff has
requested these documents and website archives going back to 2007. The court has directed some of this disclosure
including copies of the catalogues for each year that have not been produced by defendants at any time.
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separate interactions with GFI Boston. Exhibit Z, p. 79-81. We also know this is not
true from Crowley’s testimony. RMI paid employee bonuses at GFI Boston. Crowley
EBT, p. 147-148. And IT services, HR services and accounting services are RMI
ervices shared across all divisions. Crowley EBT, p. 170-172. However, Doug Jay
testifies that payroll was “done in Boston” and then sent to Atlanta to be “keyed in” by an
RMI payroll clerk (Sherry Henry) for ADP. Exhibit Z, p. 84-85.
39, Doug Jay testified the same Georgia based accountant was used by RMI
and GFI Boston to handle the books but he claims that GFI Boston independently hired
the accountant for its own use. Exhibit Z, p. 82-83. This is inconsistent with Crowley’ s
testimony. Crowley EBT, p. 77-80. Dan Crowley testified that certain expenses, like
accountant expenses from their accounting firm Smith & Howard, are applied ¢o all the
divisions proportionately. Crowley EBT, p. 160.
40. Doug Jay testified that RMI did not pay expenses for any GFT Boston
operations — “none whatsoever”. Exhibit Z, p. 81-82. This again, is a complete
misrepresentation according to the testimony of Dan Crowley and John Greeley. See e.g.
Crowley EBT, p. 27-28 (Documents that are sent from RMI’s Atlanta headquarters to
the various divisions include things like employee checks, expense checks, and possibly
HR related materials like hiring packets), Crowley EBT, p. 61-62 (All expenses
ccrued at the divisional level are approved at the divisional level but checks are cut by
RMI’s accounts payable department in Atlanta ~ expenses include vendors’ invoices
for food, boxes, services such as Jandscaping, lawyers, trucks (rented or purchased),
etc,); Crowley EBT, p. 121; (All hotel expenses for the drivers of various divisions
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would ultimately be sent back to Atlanta (RMI) for payment.); Crowley EBT, p. 147-
148. (RMI paid employee bonuses at GFI Boston.), Greeley EBT, p. 161-162 (Human
esources matters for GFI Boston were handled by AFI.); Greeley EBT, p. 387-388.
(After the 2007 sale, AFI issued checks out of Atlanta from their Suntrust account for
payment for vendors and suppliers to GFI Boston and any such payments had to first
be approved down at Atlanta headquarters).
41. The AFI driver handbook was used by drivers at all divisions including GFI
Boston. Greeley EBT, p. 414-415. The Atlanta defendants have misleadingly denied
control of GEI Boston drivers and have never produced a driver handbook issued to GFI
Boston.
42. Another series of misrepresentations and misleading statements involve the
Atlanta defendants’ claims that full ownership of GFI Boston did not occur until 2011 as
opposed to 2007. John Greeley, former president of SMI and the one that sold the
company leading to GFI Boston’s creation, stated unequivocally that AFI completed a
full takeover of SMI leading to GFI Boston’s creation in 2007. The exact day Mr.
Greeley sold SMI to AFI was the “last day of October 2007.” Greeley EBT, p.45.
43. AFI and/or RMI owned all of the interest in GFI Boston from October 2007
and on. Greeley EBT, p. 187. All Mr. Greeley’s property rights in SMI were transferred
to AFI in 2007 after the sale of the company to AFL Greeley EBT, p. 166.
44 The creation of SM Foods was by AFI and was a sham used solely to
insulate the Atlanta defendants from liabilities.
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45, Greeley confirmed this, testifying that AFI bought Greeley’s company SMI
in October 2007 (Greeley EBT, p. 39-41) and when AFI bought SMI, AFT created SM
Foods Inc. to own GFI Boston in order to “allow some separation in case there were
liabilities” and to provide “insulation.” Greeley EBT, p. 26-27. The purpose of the
creation of SM Foods after the sale of SMI to AFI was merely to pay off monies owed to
vendors that had been conducting business with SMI prior to the sale. Greeley EBT, p.
205-208, Also, SM Foods’ manager was AFI president Doug Jay. Greeley EBT, p. 29.
SM Foods filings with the Massachusetts Commonwealth were handled by the finance
department at AFI run by Mr. Crowley. Greeley EBT, p. 380-382.
46. Testimony by the defendant witnesses also contradict their own prior
affidavits. See May 2013 Crowley affidavit annexed hereto as Exhibit GG, September
16, 2013 Swords affidavit annexed hereto as Exhibit HH,
47. The inconsistencies among testimony suggest a pattern and practice of
misrepresentations, nondisclosure, and concealment. Striking of their answer is
necessary and warranted given these egregious misrepresentations by the Atlanta
defendants.
2009 ACTION
48, Most of the demands served pursuant to the 2009 action were subsequently
incorporated in demands in the 2011 action. However, it is relevant for the court’s
consideration because it demonstrates the extensive length of time for which these
documents were demanded and outstanding from defendants. This is relevant to an
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evaluation as to whether the defendants’ conduct has been repeated and willful. It is also
relevant to showing that defendants have been on notice since 2010 that these documents
were being sought (prior to the 2011 transfer of GFI Boston records to the Adlanta
defendants’ facilities). If these documents sought are now missing or not produced, this
contributes to a spoliation finding and warrants an order of preclusion as to these items.
Specific items which the defendants have willfully refused and failed to produce during
the 2009 action are delineated below:
Plaintiffs’ Notice to Produce dated 6/22/10 in First Action
49. Plaintiff demanded Rules and Regulations of Ryder Truck Rental. This
information was not provided by the defendant Ryder Truck Rental , Inc. (“Ryder”) and
is material and necessary and relates to the possession of a trucking company, leasing
company and will establish culpability on the part of Ryder.
50. The Rental Agreement of Ryder that was first produced for the parties in
this case in March, 2012 states that the renter, GFI Boston, LLC, and all of its drivers
shall comply with the rules and regulations of Ryder?
51. Plaintiff demanded the entire personnel file of Daniel E. Burke. The entire
personnel file for Daniel Burke was never been produced. Only limited portions of the
Burke personnel file have been produced. See Defendants’ Response annexed hereto as
Exhibit N (NYCEF #48)
52. The entire personnel file is relevant to the question of who was the actual
2 This same information was requested in Plaintiffs’ Notice to Produce to Ryder Truck Rental, Inc. dated May 24,
2012.
22
employer of Daniel Burke, the extent of intermingling of operations, including payroll,
human resources, employee benefits and performance evaluations, driver qualifications
and road testing, whether Burke may be deemed an employee of defendants other than
GFIB.
53. Plaintiffs demanded background investigation performed by defendants of
Mr. Burke. None was provided by any of the defendants. As per the Federal Motor
Carrier Safety Regulations (hereinafter, “FMCSR”) and as explained in Brooks
Rugemer’s affidavit (Exhibit M), the motor carrier is required to perform a background
investigation of drivers.
34. Plaintiffs demanded all periodic investigations, inspections, urinalysis, drug
testing or other examination of Daniel E. Burke. All of the foregoing information is
required under Federal law for a motor carrier.
55. No defendants produced any records indicating compliance with the Rules
and regulations of the Federal Motor Carrier Safety Act (FMCSA) in this regard.
49 CFR Section 382.105 through 382.605 require the employer
to adopt and implement an alcohol and drug testing program for
drivers of commercial vehicles, maintain records and prepare
reports of pre-employment testing, post accident testing, random
testing, reasonable suspicion testing, and return to duty testing,
train supervisors and promulgate policies. Violation of these
regulations may subject the employer to civil and criminal liability.
56. As a matter of law plaintiff is entitled to obtain the entire record of
defendant Burke regarding his operation of a federally regulated motor carrier vehicle.
357. Plaintiffs demanded the manifest for the tractor trailer and cargo contained
23
on the defendants’ motor vehicle on the date of accident when Frederick Cioffi was
injured.
58. All motor carriers are required to have manifests or bills of lading for all
shipments. No document has been produced by defendants indicating their compliance
with this recordkeeping obligation. Failure to provide this information mandates that the
court order an inference that all defendants were transporting their products on the
subject tractor trailer.
59. Plaintiff requests all documentation approving Daniel E. Burke to operate
the motor vehicles involved in the accident. This specifically requests records regarding
safety check and approval of defendant Burke. No such records have been produced.
Failure to have any such records would of necessity constitute negligence and failure to
comply with Ryder’s own regulations. Failure to provide this information mandates that
the court order an inference that Daniel Burke should not have been approved to operate
the subject tractor trailer and that all defendants negligently and recklessly approved Mr.
Burke to operate the motor vehicle.
Plaintiffs’ Notice to Produce dated July 9, 2010 in First Action
60. Plaintiff demanded all reports and filings made with the State and local
agencies regarding defendants’ operations as a motor carrier with numerous agencies.
61. No defendant has provided a complete response to this demand to date.
Again, these records are mandated to exist by federal and state law. Obviously, this
information is relevant because it will show also the identity of the company filing as a
motor carrier for the motor vehicle bearing the State of Massachusetts license plate
24
number 73951 and VIN #1FUJGECK39LAG3817 (the subject vehicle). The identity of
the entity filing as a motor carrier and the compliance or lack of compliance by
defendants with Federal and state law in this area is a central issue in this case.
Accordingly, plaintiff is entitled to the production of the entire file of all defendants
regarding their filings as a motor carrier for the tractor and trailer involved in this
accident as well as the general operations of the alleged motor carrier “Sheila Marie
Imports,”
62. If none are provided, a negative inference should be applied whereby all
defendants should be inferred to have filed as motor carrier for the subject vehicle and
thereby all defendants are to be held responsible for the subject vehicle’s liabilities.
63. Plaintiff requested violations issued to all defendants regarding the
vehicle(s) owned and operated (including leased or rented vehicles) by the defendants
that was involved in the accident giving rise to this lawsuit. Plaintiff also specifically
requested copies of violations issued to Daniel E. Burke by any state, local or federal
agencies regarding the operation of any vehicle. Plaintiff requested copies of all
violations issued to any defendant by any state, local, or federal law enforcement or
administrative agency.
64. No response has been provided to this demand. This information is
important because it will show failures to comply with the FMCSA and other applicable
laws, rules and regulations. This would show both violations of state and federal law in
the operation of the trucking operations by “Sheila Marie Imports” and also neglect of
Ryder and facilitation by Ryder of criminal/unlawful conduct by “Sheila Marie Imports”
25
in violation Federal and State laws regulating interstate trucking/motor carriers.
65. Plaintiff requested all leases, payment records and other documents
relating to any rental or lease of the motor vehicles involved, driven by the defendant
Burke at the time of the occurrence giving rise to this lawsuit.
66. GFI Boston, LLC and Ryder did not respond to this demand other than to
produce a 2-page “Rental Agreement”. Compliance, renewals, payment records,
regulations and other documents referenced in the “rental agreement” had not been
produced and Atlanta only provided the expired rental agreement.
Plaintiffs’ Second Notice to Produce dated 8/4/10
67. Plaintiffs requested authorization for drug and alcohol testing for defendant
Burke for May 1, 2008 through May 30, 2009. Ryder has not provided any response to
this demand.’ GFI Boston, LLC and other defendants including the Atlanta defendants
have not responded to this demand. This testing is required by both federal and state law
and there is no privilege attending to these records as they are mandated by law.
68. The plaintiffs demanded the entire file maintained by Daniel Burke at his
home for the incident of May 22, 2009. Defendant Burke testified he had a file at home
but has not produced it. Additionally piaintiffs have demanded and defendants are
required to produce all log books for Daniel Burke for May 2009. No defendant has
provided any response to this demand even though driver logbooks are required as a
matter of law. Log Books are required to be maintained under both the FMCSA and
3 The same information was requested in plaintiffs’ demand dated May 4, 2012 addressed in the court’s September
27, 2012 Order directing defendants to produce the same.
26
enabling federal regulations and parallel state laws and regulations. Mr. Burke testified
to preparing logs and having turned them over to his employer “Sheila Marie Imports”.
The records have not been produced nor any affidavit regarding the absence of such
records.
69, As previously mentioned, all documents evidencing any lease or other
arrangement between Ryder and the employer of Daniel E. Burke still have yet to be
produced pursuant to plaintiffs’ demands. Ryder has not provided any response to this
demand and has only produced a 2 page Rental Agreement. If this is the only document
creating a rental agreement, then defendant needs to so state or produce any other
records. This demand further requires production of records of both the “renter” and
“rentee” of the tractor in question. In this regard both Ryder and GFI Boston, LLC, SM
Foods, Inc. and Russell McCall’s, Inc. and Doug Jay are required to provide responses to
this demand.
70. Plaintiffs demanded all documents evidencing any lease or other
arrangement for the use, rental, lease or operation of any motor vehicle involved in the
accident of May 22, 2009. Parties have only produced a 2 page Rental Agreement. The
plaintiffs’ demand seeks production of a broader class of documents including emails,
other computerized records and any other document of any sort that would constitute a
valid lease for the tractor in question. No document has been produced between Ryder
and any other defendant other than the 2 page rental agreement. If this is all that exists,
the defendants must so state.
71. Defendants were also to provide reference books provided to defendant
27
Daniel E. Burke during training that may contain some information relevant to the
Federal Motor Carrier Safety Act.
72, Daniel Burke indicated that he had some training materials and was in
possession of reference book with information relevant to the FMCSA and is in
compliance with the same. Mr. Burke has not produced this because even though he
attested to having the same in his home at his deposition in the First Action.*
2011 ACTION
723. Defendants continued their pattern and practice of shirking discovery
obligations after commencement of the 2011 action. Defendants ignored and refused to
respond to numerous demands. Where defendants did respond, they responded with
evasive answers and misrepresented facts.
74. At the outset plaintiffs note that none of the Court ordered discovery
discussed below had been produced by defendants in its original electronic format. In
fact, to the extent that any discovery related to GFIB has been court ordered and not
produced in its original electronic format, it should be subject to the adverse inference
charge imposed by the Court in its November 8, 2013 Order due to the destruction of
GFIB’s computers by the Atlanta defendants. However, to the extent that the Atlanta
defendants have been ordered to provide discovery and have failed to do so, either by
paper documents, but in particular by producing electronically stored information, such
* The same information was requested in plaintiffs’ demand dated May 4, 2012 addressed in the court’s September
27, 2012 Order directing defendants to produce the same.
28
as computer software downloads and emails, they should have their answer stricken
and/or be precluded for failing to produce such documents in their original format.
Plaintiffs’ Amended Fourth Notice to Produce
7. The discovery that plaintiffs demand in their Amended Fourth Notice to
Produce, to which defendants were ordered to respond in the Court’s May 20, 2013 and
October 16, 2013 Orders, goes all the way back to discovery identified as necessary by
plaintiffs’ accounting expert, Thomas Fiorenza, CPA, in June, 2012. By way of
background, in June, 2012, plaintiffs’ submitted Mr. Fiorenza’s affidavit in opposition to
a June 2012 Order to Show Cause by the Atlanta defendants. Mr. Fiorenza explained in
detail the nature and extent of the records that pl
Preview
(FILED: WESTCHESTER COUNTY CLERK 1271272014 08:11 PM INDEX NO. 55391/2011 NYSCEF DOC. NO. 2071 RECEIVED NYSCEF: 12/12/2014 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF WESTCHESTER peer eee een een eee n nna nme nenma mane FREDERICK M. CIOFFI and ELISABETTA CIOFFI, Plaintiffs, AFFIRMATION AND MEMO IN SUPPORT -against- OF MOTION TO STRIKE AND COMPEL COMPLIANCE WITH S.M. FOODS, INC., GFI BOSTON, LLC, DISCOVERY ORDERS ATLANTA FOODS INTERNATIONAL, RUSSELL McCALL’S INC., RUSSELL McCALL’S INC. Index No.: 55391/2011 d/b/a SHEILA MARIE FOODS, SHEILA MARIE IMPORTS, DOUG JAY, RYDER TRUCK RENTAL, INC., PLM TRAILER LEASING and DANIEL E. BURKE, Defendants. eee eee eee neem nen ene nen nnn nnn naam, S.M. FOODS, INC., GFI BOSTON INC., LLC, PLM TRAILER LEASING and DANIEL BURKE, Third-Party Plaintiffs, -against- VILLAGE OF TUCKAHOE and VINCENT PINTO, Third-Party Defendants. panne n nee eeeen nae paneeeennnsnen nna, JONATHAN RICE, an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms the following under the penalties of perjury: 1 Lam trial counsel to Grant & Longworth, LLP, attorneys for the plaintiffs and as such I am fully familiar with the facts and circumstances of this action. I submit this affirmation in support of this motion to strike the answers of all the defendants, and in particular the answers of defendants ATLANTA FOODS INTERNATIONAL, RUSSELL McCALL’S INC. (hereinafter “RMI”), RUSSELL McCALL’S INC. d/b/a SHEILA MARIE FOODS, and DOUG JAY (hereinafter collectively, “Atlanta defendants” or “RMI” or “AFT”) for repeated willful and contumacious refusals and. failures to provide discovery responsive to plaintiffs’ demands including court ordered discovery in violation of, inter alia, SIX (6) court orders, or in the alternative to preclude defendants from offering evidence at trial to refute plaintiffs’ allegations, or in the further alternative to compel that discovery which remains outstanding in violation of court orders. 2 Plaintiff respectfully requests that this Court strike defendants’ answer and/or preclude for the following conduct: a. Violation of discovery orders and failure to produce documents responsive to those discovery orders. j, Decision and Order dated September 27, 2012 (NYSCEF Doe. # 163). Annexed hereto as Exhibit A. i. Decision and Order dated February 11, 2013 (NYSCEF Doc. #539). Annexed hereto as Exhibit B. iii. Decision and Order dated May 20, 2013 (NYSCEF Doc. # 658). Annexed hereto as Exhibit C. Iv, Decision and Order dated October 16, 2013 (NYSCEF Doc. #929). Annexed hereto as Exhibit D. y. Decision and Order dated November 7, 2013 (NYSCEF Doc. # 1034). Annexed hereto as Exhibit E. vi. Decision and Order dated January 22, 2014 (NYSCEF Doc. # 1227). Annexed hereto as Exhibit F. vii. Decision and Order dated October 20, 2014 b. Willful and contumacious failure and refusal to provide responses (in whole or in part) to numerous demands (Exhibit H, I, J, K, and L); Bad faith concealment of relevant information including failure to disclose the name and position of Leslie Allen and records of defendants that they have allowed to be turned over to their agent/employee Leslie Allen who had an email address at Atlanta Foods International (lallen@atlantafoods.com) and served as Transportation Manager and was in charge of Safety and Compliance for all of AFI’s operations in at its Headquarters and various divisions including Sheila Marie Imports Division (Division 4).(Pursuant to testimony of Doug Jay and discovery responses from defendants, Ken Swords was supposedly the Atlanta defendants “safety inspection” and in charge of all things having to do with DOT/Federal Motor Carrier Safety Administration Compliance. At the recent deposition of Ken Swords, Mr. Swords denied being responsible for this function and identified Leslie Allen as being the person who handled this function.) d. Violation of the October 20, 2014 order of this court in that the Atlanta Defendants have failed to produce records in their custody, possession and control (including records in the possession of their agent Leslie Allen who is or was reportedly the Transportation Manager for AFI and its various divisions at the time of the events giving rise to this lawsuit and thereafter.) Failure to produce Ken Swords and Dan Crowley for completion of their depositions. Failure to provide full and complete responses to plaintiffs 3° and 4" Interrogatories to defendants and for bad faith failure to respond to the same for months and they providing deficient responses on the eve of a deadline by this court for plaintiff to serve a motion addressing the same in a manner designed to prevent plaintiff from including objections and claims about defendants disclosure deficiencies in a timely manner to this court. (Note that plaintiff served these interrogatories on May 8, 2014, the court issued a scheduling order on May 29, 2014, plaintiff’s deadline to file a motion was June 16, 2014 and defendants served specious improper non- responses on Jun 18, 2014. This was designed to frustrate disclosure, prevent timely addressing of these issues by the court and counsel for plaintiff.) Failure of defendants to produce various documents central to the issues in this case including but not limited to the following: i. Driver Handbook of AFI in use in the Massachusetts operations of AFI (Sheila Marie Imports from January 1, 2008 through the date of cessation of operations in Massachusetts.) i. Original personnel file (qualifications file) for Daniel Burke due to belief by counsel that photocopies produce by defendants may not be accurate including that the same appear to have documentation cut off and the papers appear to have been re-copied. iii. Failure to produce original emails, including emails directed by this court to be produced, that appear to be altered and are not original strings of emails and have information removed from the printout of the document (including the fact that emails from years ago appear now to be printed out with email information from Terrance Quinlan indicating that the original emails were not printed out in their original state and condition. Vv. Failure to produce speed limit acknowledgement documents that were part of the hiring/employment package from Atlanta Foods International and was supposed to be signed by all drivers at AFI's Sheila Marie Division. These documents should be produced for Daniel Burke and all other AFI’s Sheila Marie Imports Divisions drivers from October 2007 through to the termination of operations of the Sheila Marie Division in 2012. y. Failure to produce original employment application for Daniel Burke and all other AFI Sheila Marie Imports Divisions drivers from October 2007 through to the termination of operations of the Sheila Marie Division in 2012 given that the original employment application lists Russell McCall’s, Inc and Atlanta Foods International as the employer. Vi Failure to disclose the DOT/Motor Carrier regulatory and compliance documentation and related documentation that should be in the possession of the defendants that this court directed be produced pursuant to its October 20, 2014 order and prior orders of this court. vii. Failure to provide authorizations for FMCSA records pursuant to Tuly 2014 demands. 3. In addition, the instant motion filed by plaintiff seeks sanctions against the Atlanta defendants represented by the firm of White Quinlan & Staley, LLP. The history of discovery in this case has been replete with withholding of discovery time and again by the defendants collectively. Sanctions are warranted given the fact defendants have refused to provide good faith disclosures, submitted false and misleading information in affidavits submitted to the is court and provided false and misleading testimony in depositions in this case including on the following: Misrepresentations by the Atlanta defendants that there was no basis for corporate liability claims because RMI’s business was “completely separate” from that of GFI Boston which discovery has revealed was a total misstatement; The nature, timing and extent of the takeover and acquisition by the Adlanta defendants of SMI’s business and it’s conversion into an RMI division as evidenced by John Greeley’s testimony; The extent to which operations, communications, computer systems, and management were integrated, shared and commingled between the Atlanta defendants and its divisions as evidenced by the contradictory testimony between John Greeley, Dan Crowley and Doug Jay; The fact that all GFI Boston records (all hard copy records were transferred although defendants previously had those records both in hard copy form in Atlanta and the key documents were scanned in and stored digitally in Adanta per Dan Crowley; additionally it seems other key documents were transferred to AFI’s internal compliance and transportation department and then were claimed to not be in defendants possession because the same were in the custody, possession or control of Leslie Allen defendants agent whom they control and still employ) were transferred to RMI headquarters in Atlanta in 2011 and that this involved 250 boxes of cords with computers and this fact — incredibly - was not disclosed until 2013; Misleading plaintiffs and the court regarding the Atlanta defendants’ possession of GFI Boston records by repeatedly responding to discovery requests by claiming GFI Boston was wholly responsible for those records/information and that the Atlanta defendants did not have access to such records/information; meanwhile GFI Boston had already transferred all its files to Atlanta in 2011; The failure to advise of the head of safety and motor carrier compliance for the Atlanta defendants including Leslie Allen whose identity was only revealed as of Ken Swords November 2014 deposition; The failure and refusal to promptly reveal personnel with knowledge of the Adanta defendants’ operations including failing to advise of Tim White’s operational involvement in RMI’s divisions; 4 Conditionally striking defendants’ answer and making such order self- executing unless the defendants do the following: a. Produce the records directed by this court to be produced and the records further specified herein to be produce by a date to be determined by the court. Producing all leases including master leases used to rent, lease, maintained and fuel vehicles used in the Massachusetts operations of AFI/Sheila Marie Imports for the period October 1, 2007 until 2012 when AFI/Sheila Marie Imports allegedly ceased its operations. Directing defendants to provide documents and information requested in the Discovery demands dated December 12, 2014 (Exhibit Y) that seek information that was concealed by defendants from plaintiffs and this court previously; Produce Dan Crowley and Ken Swords for completion of their depositions; Provide plaintiffs with any documents the defendants obtained via subpoena. Provide authorizations for FMCSA records pursuant to July 2014 demands 5 Finally, plaintiffs seek to compel the deposition of Leslie Allen, agent and employee in fact or in law of the Atlanta defendants. 6. Plaintiff's incorporate by reference herein the arguments contained in plaintiffs’ e-filed motion papers for motion sequence #32, #33 and #36 which detail all the discovery abuses and willfully noncompliant conduct engaged in by the Atlanta defendants. Those motion papers also detail bases for finding that all discovery sought is material, relevant and discoverable given plaintiffs’ allegations against the Atlanta defendants for abuse of the corporate veil, successor liability, de factor merger, alter ego theory, improper use of motor carrier operating authority, domination and control of subsidiary/alter ego defendants SHEILA MARIE IMPORTS (hereinafter, “SMI’), S.M. FOODS, INC. (hereinafter “SM Foods”), and GFI BOSTON, LLC (hereinafter, “GFI Boston”). 7 Additionally, plaintiffs incorporate by reference herein the attestations of trucking and motor carrier expert Brooks Rugemer in his affidavit annexed hereto as Exhibit M. STANDARD OF REVIEW 8 Plaintiff’ s motion should be granted in its entirety because plaintiff’ s motion has been made in good faith, with numerous attempts to resolve discovery issues both with and without court intervention throughout the course of approximately five (5) years of litigation. 22 N.Y.C.R.R. § 202.7(a); Charter One Bank SSB v. Houston, 300 A.D.2d 429, 430 (2™ Dept., 2002) (Moving party entitled to relief where a good faith effort has been made to resolve the discovery disputes). 9 Yet, the defendants, and in particular the Atlanta defendants, have repeatedly obstructed discovery progression and in many instances willfully refused to comply with court orders. 10. There are literally dozens of letters whereby plaintiff is requesting outstanding discovery from defendants in good faith and requesting compliance with defendants’ court ordered obligations. Good faith letters annexed hereto as Exhibit H. li. As will be further detailed below, significant aspects of plaintiffs’ varied demands, letters and the court's orders have been contumaciously ignored by defendants 10 12. Although striking a pleading is a drastic remedy, it is warranted “where a clear showing has been made that the noncompliance of the discovery order was willful, contumacious or due to bad faith.” Patterson v. New York City Health and Hospitals Corp., 726 N.Y.S.2d 715 (2™ Dept., 2001); Mateo v. City of New York, 274 A.D.2d 337, (1* Dept., 2000). 13. Willful, contumacious conduct occurs when there are repeated violations without justification. Longo v. Armor Elevator Co,, 763 N.Y.S.2d 597 (1 Dept., 2003). Willful, contumacious conduct occurs when a defendant engages in dilatory tactics and repeatedly refuses to provide discovery, including a deposition. Wilson v. Galicia Contracting and Restoration Corp., 779 N.Y .S.2d 527 (2d Dept. 2004) (where answer was stricken because answering party engaged in a two-year pattern of failure to respond to demands, court orders, and conditional orders with no reasonable excuse); Abouzeid v. Cadogan, 737 N.Y.8.2d 634 (2"™ Dept., 2002) (offending party failed to comply with four court orders with no excuse offered); Appler v. Riverview Ob. & Gyn., P.C., 780 N.Y.S.2d 188 (3 Dept., 2004); Ortiz v. Weaver et al., 590 N.Y.S.2d 474 (i* Dept., 1992) (where defendant’s behavior was considered dilatory and obstructive because defendant did not respond to discovery requests, in whole or even in part and even ignored court-ordered enforcement). 14. The Atlanta defendants have engaged in conduct that mirrors and even exceeds the conduct in the above cited cases. Their conduct is at least as egregious, if not more egregious, than the defendants whose answers were stricken in those cases. Asa il result, this Court should follow Appellate Division precedent and grant plaintiff’s motion to strike defendants’ answer in its entirety. BRIEF PROCEDURAL HISTORY 15. As this Court is well aware, this action arises from a motor vehicle accident which occurred on May 22, 2009. Plaintiffs commenced an action by filing a complaint with this court in September 2009. In connection with that action, plaintiffs’ served Notices to Produce dated June 22, 2010, July 9, 2010, and August 4, 2010. Plaintiffs’ discovery demands from 2009 action annexed hereto as Exhibit I. 16. As will be further outlined below, the Atlanta defendants’ pattern and practice of willful withholding of discovery began at the outset with inadequate responses to plaintiffs’ 2010 demands. 17. By stipulation dated May 2011, the 2009 action was discontinued without prejudice and the instant action was commenced by filing of summons and complaint in September 2011. Plaintiffs served a Second Notice to Produce dated May 31, 2011 (Exhibit J) which garnered insufficient responses. Thereafter, plaintiffs served Plaintiffs’ Notice to Produce dated April 30, 2012 (Exhibit K). Defendants failed to adequately respond to these demands. As a result, plaintiffs were forced to resort to motion practice. Plaintiffs filed a motion to strike and the court declined to strike the answer by otherwise intervened by decision dated September 27, 2012 (Exhibit A) ordering defendants to provide discovery. 18. The Atlanta defendants continued to fail to provide adequate discovery responsive to plaintiffs’ demands and failed to comply with the September 27, 2012 12 order. The plaintiffs were forced to file yet another motion to procure compliance. 19. By Decision and Order dated February 11, 2013 (Exhibit B), the Court ruled that the Atlanta defendants did not sufficiently comply with discovery obligations and the Atlanta defendants were ordered to provide supplemental and additional responses. 20. And yet again, the Atlanta defendants failed and refused to comply with this second court order. 21. Plaintiffs then served additional discovery responses (plaintiffs’ third, fourth, and fifth notices to produce annexed hereto as Exhibit L) which were again inadequately responded to by the Atlanta defendants. 22. The court had to intervene now for a third time in the 2011 action due to defendants’ willful failure and refusal to comply with discovery demands. By decision and order dated May 20, 2013, the court ordered that the defendants shall respond to the third, fourth and fifth notices to produce on or before June 5, 2013 (Exhibit C). 23. The willful and contumacious failures to comply with discovery obligations on the part of the Atlanta continued and the court intervened again on October 17, 2013 (Exhibit D). The plaintiffs were ordered to provide an amended Fourth Notice to Produce by October 21, 2013 and thereafter, defendants were to respond by October 31, 2013. (Finally at this time were some relevant documents produced some two years after plaintiff started requesting critical documents in this action; and after several years of non-production of documents in the previously filed lawsuit involving these same parties.) In essence defendants withheld key records for 3-4 years prior to making any 13 truly relevant disclosure and that disclosure in October 2013 revealed and began to reveal how the defendants had set up and operated this integrated national food distribution business concealing from the court and federal government who was operating and controlling the motor carrier supposedly doing business as Sheila Marie Imports. 24. Then, by decision and order dated November 7, 2013 (Exhibit E), due to continuing non-compliance by the Atlanta defendants, the Atlanta defendants were ordered to provide on or before December 6, 2013 an affidavit from a person with knowledge detailing whether the items previously requested by plaintiffs still outstanding pursuant to Plaintiffs’ Notice to Produce dated 4-30-12 and the Court’s 9-27-12 Order 25, Then, by decision and order dated January 22, 2014 (Exhibit F), due to further non-compliance by the Atlanta defendants, the court ordered the Atlanta defendants to provide plaintiffs a supplemental response to plaintiffs’ Amended 4e Notice to Produce (to be provided on or before March 3, 2014). The Atlanta defendants failed and refused to fully comply thereafter. 26. Additionally, plaintiffs served a third and fourth Set of Interrogatories (Exhibit L), both dated, May 8, 2014. Defendants failed to adequately respond and has yet again forced motion practice on the part of plaintiffs by the herein motion. 27, Finally, due to the Atlanta defendants’ continuing non-compliance and refusal to provide relevant discovery, further motion practice (motion sequences #32 and #33) resulted in this Court’s October 20, 2014 order (Exhibit G). The plaintiffs are presently seeking to reargue portions of this order denying plaintiff's access to material and relevant discovery by motion sequence #36. Arguments from motion sequences #32, 14 #33, and #36 are incorporated by reference herein. ARGUMENT. 28. Given the long history of willful, inexcusable and contumacious refusals and failures to provide material, relevant, and court ordered discovery, the defendants’ answers should be stricken in their entirety or in the alternative, precluded from offering evidence at trial to refute plaintiffs’ allegations; specifically, those that assert that the Atlanta defendants were operating as the motor carrier responsible for the subject injury- causing truck and that the Atlanta defendants completely dominated and controlled GFI Boston and/or SM Foods and/or SMI and abused these corporate forms to a degree that warrants piercing of the corporate veil. Wilson v. Galicia Contracting and Restoration Corp., 719 N.Y.S.2d 527 (2d Dept. 2004) ; Abouzeid v. Cadogan, 737 N.Y.S.2d 634 a" Dept., 2002); Appler v. Riverview Ob. & Gyn., P.C., 780 N.Y.S.2d 188 (3 Dept., 2004); Ortiz v. Weaver et al., 590 N.Y.S.2d 474 Dept., 1992). 29. Moreover, a large portion of the discovery that remains outstanding include records that the federal government requires be generated and maintained in connection with motor carrier operations. If any of the defendants are claiming that any of these federally required documents do not exist, an affidavit attesting to the search as well as an explanation for their absence must be provided to plaintiffs. Additionally, plaintiffs should be afforded a negative inference against defendants with respect to any document defendants fail to provide. For instance, if defendants fail to provide federally mandated drug screening records for Daniel Burke, then the court should order an inference be imposed that Daniel Burke did not pass the pre-hiring drug screening and was 15 nevertheless improperly hired by the defendants in violation of federal law. 30. Additionally, the court is reminded that the Atlanta defendants are purportedly in possession of all of defendant GFI Boston’s records (approximately 250 boxes of records) which were transported down to Atlanta’s headquarters after the closing of the GFI Boston division. The Atlanta defendants did not advise of this fact until 2013. That is a serious disregard of CPLR 3101 full disclosure obligations. 31. The Atlanta defendants have repeatedly shown throughout this litigation that they will willfully and contumaciously withhold and misrepresent information. Just some of the mistepresentations are evident from cursory analysis of deposition transcripts alone. Defendants further have failed to supplement or amend any of their prior responses even though this is a self-executing aspect of CPLR 3101 and all parties are required to do so in good faith. Here the defendants have known their responses to be deficient and they have attempted to and have misled this court on how their company was run and operated and where the records are relating to the location of those documents. Defendants had them all the time. If they did not physically have them on their premises, they were stored and are stored in defendants’ servers and back up drives per testimony of Dan Crowley. Additionally, the documents and information sought would also be in the possession of defendants Transportation Manager Ms. Leslie Allen or her company that was created at some point. Ms. Allen, however, still works for defendants and used an AFI email address to communicate with persons in the AFI system of companies to address and handle the regulatory and compliance aspects of motor carrier operations. 16 32. Although the Atlanta defendants have repeatedly insisted that RMI did not distribute product out of Boston and rather Boston operations were run independently and completely separate as its own company called GFI Boston, Doug Jay almost immediately contradicts these denials at the start of his deposition in 2011. He characterizes GFI Boston LLC as a distribution point that he personally managed. Exhibit Z, p. 11-12. 33. Furthermore, as much as Doug Jay tried to separate himself from Boston’s operations, he stated that everybody at GFI Boston works for John Greeley and Greeley works for Doug Jay. Exhibit Z, p. 34. In other words, Doug Jay testified he controlled John Greeley, who controlled GFI Boston. This is what a Manager of an LLC does and why a “Manager” of an LLC is the person designated in the corporate paperwork and under state law as the person operating and controlling an LLC. Doug Jay weakly tries to separate the Atlanta defendants from GFI Boston by offering Greeley as the middle man but it is a transitive relation nonetheless, inextricably tying Doug Jay and the Atlanta defendants to GFI Boston’s operations. 34, Moreover, he confirmed that the “Atlanta” accountant did the annual accounting and books for GFI Boston after RMI’s involvement in 2007. Exhibit Z, p. 50. The same accountant was doing the books for both RMI and GFI Boston. 35. Doug Jay testified RMI does not sell products under the Sheila Marie trade name and merely bought and sold products from Sheila Marie. Exhibit Z, p. 53-55. This is clearly false — website information shows RMI represented itself as having fully acquired SMI and that it had commandeered use of the trade name. Website information 17 annexed hereto as Exhibit DD. Doug Jay testified only GF! Boston uses the Sheila Marie trade name. Exhibit Z, p. 56.' 36. Atlanta personnel did not communicate with Tony DeMarco who was in charge of operations in Boston. Exhibit Z, p. 57-58. This directly contradicts J ohn Greeley’s testimony who said Anthony DeMarco coordinated with Ken Swords (head of distribution and trucking operations for AFI) and they assessed SMI’s trucking operations and coordinated with each other regarding such issues as motor carrier operations. Greeley EBT, p. 72-74. 37. Doug Jay claims RMI and GFI Boston’s operations were “very, very separate” but had difficulty providing a straight forward answer when asked whether they shared computer systems, specifically in regard to orders and invoices. Exhibit Z, p. 78- 719, As we know from Dan Crowley and John Greeley’s testimony, Doug Jay misrepresents the facts because the operations between divisions and RMI were not separate and computer systems were indeed shared and all centralized out of Atlanta. In fact all orders were centralized in Atlanta and all customer files and information was fully integrated into a massive national database and Enterprise Software system that allowed for fully integrated ordering, customer service, accounts payable, accounts receivable, logistics and accounting of all sorts including creation of a general ledger. 38. Doug Jay confirms that ADP handled employee payroll for RMI and GFI Boston but claims RMI funds were not used to pay GFI employees and that ADP had ' RMI/AFL has used this name in its internet transactions, in its catalogues and on its websites. Plaintiff has requested these documents and website archives going back to 2007. The court has directed some of this disclosure including copies of the catalogues for each year that have not been produced by defendants at any time. 18 separate interactions with GFI Boston. Exhibit Z, p. 79-81. We also know this is not true from Crowley’s testimony. RMI paid employee bonuses at GFI Boston. Crowley EBT, p. 147-148. And IT services, HR services and accounting services are RMI ervices shared across all divisions. Crowley EBT, p. 170-172. However, Doug Jay testifies that payroll was “done in Boston” and then sent to Atlanta to be “keyed in” by an RMI payroll clerk (Sherry Henry) for ADP. Exhibit Z, p. 84-85. 39, Doug Jay testified the same Georgia based accountant was used by RMI and GFI Boston to handle the books but he claims that GFI Boston independently hired the accountant for its own use. Exhibit Z, p. 82-83. This is inconsistent with Crowley’ s testimony. Crowley EBT, p. 77-80. Dan Crowley testified that certain expenses, like accountant expenses from their accounting firm Smith & Howard, are applied ¢o all the divisions proportionately. Crowley EBT, p. 160. 40. Doug Jay testified that RMI did not pay expenses for any GFT Boston operations — “none whatsoever”. Exhibit Z, p. 81-82. This again, is a complete misrepresentation according to the testimony of Dan Crowley and John Greeley. See e.g. Crowley EBT, p. 27-28 (Documents that are sent from RMI’s Atlanta headquarters to the various divisions include things like employee checks, expense checks, and possibly HR related materials like hiring packets), Crowley EBT, p. 61-62 (All expenses ccrued at the divisional level are approved at the divisional level but checks are cut by RMI’s accounts payable department in Atlanta ~ expenses include vendors’ invoices for food, boxes, services such as Jandscaping, lawyers, trucks (rented or purchased), etc,); Crowley EBT, p. 121; (All hotel expenses for the drivers of various divisions 19 would ultimately be sent back to Atlanta (RMI) for payment.); Crowley EBT, p. 147- 148. (RMI paid employee bonuses at GFI Boston.), Greeley EBT, p. 161-162 (Human esources matters for GFI Boston were handled by AFI.); Greeley EBT, p. 387-388. (After the 2007 sale, AFI issued checks out of Atlanta from their Suntrust account for payment for vendors and suppliers to GFI Boston and any such payments had to first be approved down at Atlanta headquarters). 41. The AFI driver handbook was used by drivers at all divisions including GFI Boston. Greeley EBT, p. 414-415. The Atlanta defendants have misleadingly denied control of GEI Boston drivers and have never produced a driver handbook issued to GFI Boston. 42. Another series of misrepresentations and misleading statements involve the Atlanta defendants’ claims that full ownership of GFI Boston did not occur until 2011 as opposed to 2007. John Greeley, former president of SMI and the one that sold the company leading to GFI Boston’s creation, stated unequivocally that AFI completed a full takeover of SMI leading to GFI Boston’s creation in 2007. The exact day Mr. Greeley sold SMI to AFI was the “last day of October 2007.” Greeley EBT, p.45. 43. AFI and/or RMI owned all of the interest in GFI Boston from October 2007 and on. Greeley EBT, p. 187. All Mr. Greeley’s property rights in SMI were transferred to AFI in 2007 after the sale of the company to AFL Greeley EBT, p. 166. 44 The creation of SM Foods was by AFI and was a sham used solely to insulate the Atlanta defendants from liabilities. 20 45, Greeley confirmed this, testifying that AFI bought Greeley’s company SMI in October 2007 (Greeley EBT, p. 39-41) and when AFI bought SMI, AFT created SM Foods Inc. to own GFI Boston in order to “allow some separation in case there were liabilities” and to provide “insulation.” Greeley EBT, p. 26-27. The purpose of the creation of SM Foods after the sale of SMI to AFI was merely to pay off monies owed to vendors that had been conducting business with SMI prior to the sale. Greeley EBT, p. 205-208, Also, SM Foods’ manager was AFI president Doug Jay. Greeley EBT, p. 29. SM Foods filings with the Massachusetts Commonwealth were handled by the finance department at AFI run by Mr. Crowley. Greeley EBT, p. 380-382. 46. Testimony by the defendant witnesses also contradict their own prior affidavits. See May 2013 Crowley affidavit annexed hereto as Exhibit GG, September 16, 2013 Swords affidavit annexed hereto as Exhibit HH, 47. The inconsistencies among testimony suggest a pattern and practice of misrepresentations, nondisclosure, and concealment. Striking of their answer is necessary and warranted given these egregious misrepresentations by the Atlanta defendants. 2009 ACTION 48, Most of the demands served pursuant to the 2009 action were subsequently incorporated in demands in the 2011 action. However, it is relevant for the court’s consideration because it demonstrates the extensive length of time for which these documents were demanded and outstanding from defendants. This is relevant to an 21 evaluation as to whether the defendants’ conduct has been repeated and willful. It is also relevant to showing that defendants have been on notice since 2010 that these documents were being sought (prior to the 2011 transfer of GFI Boston records to the Adlanta defendants’ facilities). If these documents sought are now missing or not produced, this contributes to a spoliation finding and warrants an order of preclusion as to these items. Specific items which the defendants have willfully refused and failed to produce during the 2009 action are delineated below: Plaintiffs’ Notice to Produce dated 6/22/10 in First Action 49. Plaintiff demanded Rules and Regulations of Ryder Truck Rental. This information was not provided by the defendant Ryder Truck Rental , Inc. (“Ryder”) and is material and necessary and relates to the possession of a trucking company, leasing company and will establish culpability on the part of Ryder. 50. The Rental Agreement of Ryder that was first produced for the parties in this case in March, 2012 states that the renter, GFI Boston, LLC, and all of its drivers shall comply with the rules and regulations of Ryder? 51. Plaintiff demanded the entire personnel file of Daniel E. Burke. The entire personnel file for Daniel Burke was never been produced. Only limited portions of the Burke personnel file have been produced. See Defendants’ Response annexed hereto as Exhibit N (NYCEF #48) 52. The entire personnel file is relevant to the question of who was the actual 2 This same information was requested in Plaintiffs’ Notice to Produce to Ryder Truck Rental, Inc. dated May 24, 2012. 22 employer of Daniel Burke, the extent of intermingling of operations, including payroll, human resources, employee benefits and performance evaluations, driver qualifications and road testing, whether Burke may be deemed an employee of defendants other than GFIB. 53. Plaintiffs demanded background investigation performed by defendants of Mr. Burke. None was provided by any of the defendants. As per the Federal Motor Carrier Safety Regulations (hereinafter, “FMCSR”) and as explained in Brooks Rugemer’s affidavit (Exhibit M), the motor carrier is required to perform a background investigation of drivers. 34. Plaintiffs demanded all periodic investigations, inspections, urinalysis, drug testing or other examination of Daniel E. Burke. All of the foregoing information is required under Federal law for a motor carrier. 55. No defendants produced any records indicating compliance with the Rules and regulations of the Federal Motor Carrier Safety Act (FMCSA) in this regard. 49 CFR Section 382.105 through 382.605 require the employer to adopt and implement an alcohol and drug testing program for drivers of commercial vehicles, maintain records and prepare reports of pre-employment testing, post accident testing, random testing, reasonable suspicion testing, and return to duty testing, train supervisors and promulgate policies. Violation of these regulations may subject the employer to civil and criminal liability. 56. As a matter of law plaintiff is entitled to obtain the entire record of defendant Burke regarding his operation of a federally regulated motor carrier vehicle. 357. Plaintiffs demanded the manifest for the tractor trailer and cargo contained 23 on the defendants’ motor vehicle on the date of accident when Frederick Cioffi was injured. 58. All motor carriers are required to have manifests or bills of lading for all shipments. No document has been produced by defendants indicating their compliance with this recordkeeping obligation. Failure to provide this information mandates that the court order an inference that all defendants were transporting their products on the subject tractor trailer. 59. Plaintiff requests all documentation approving Daniel E. Burke to operate the motor vehicles involved in the accident. This specifically requests records regarding safety check and approval of defendant Burke. No such records have been produced. Failure to have any such records would of necessity constitute negligence and failure to comply with Ryder’s own regulations. Failure to provide this information mandates that the court order an inference that Daniel Burke should not have been approved to operate the subject tractor trailer and that all defendants negligently and recklessly approved Mr. Burke to operate the motor vehicle. Plaintiffs’ Notice to Produce dated July 9, 2010 in First Action 60. Plaintiff demanded all reports and filings made with the State and local agencies regarding defendants’ operations as a motor carrier with numerous agencies. 61. No defendant has provided a complete response to this demand to date. Again, these records are mandated to exist by federal and state law. Obviously, this information is relevant because it will show also the identity of the company filing as a motor carrier for the motor vehicle bearing the State of Massachusetts license plate 24 number 73951 and VIN #1FUJGECK39LAG3817 (the subject vehicle). The identity of the entity filing as a motor carrier and the compliance or lack of compliance by defendants with Federal and state law in this area is a central issue in this case. Accordingly, plaintiff is entitled to the production of the entire file of all defendants regarding their filings as a motor carrier for the tractor and trailer involved in this accident as well as the general operations of the alleged motor carrier “Sheila Marie Imports,” 62. If none are provided, a negative inference should be applied whereby all defendants should be inferred to have filed as motor carrier for the subject vehicle and thereby all defendants are to be held responsible for the subject vehicle’s liabilities. 63. Plaintiff requested violations issued to all defendants regarding the vehicle(s) owned and operated (including leased or rented vehicles) by the defendants that was involved in the accident giving rise to this lawsuit. Plaintiff also specifically requested copies of violations issued to Daniel E. Burke by any state, local or federal agencies regarding the operation of any vehicle. Plaintiff requested copies of all violations issued to any defendant by any state, local, or federal law enforcement or administrative agency. 64. No response has been provided to this demand. This information is important because it will show failures to comply with the FMCSA and other applicable laws, rules and regulations. This would show both violations of state and federal law in the operation of the trucking operations by “Sheila Marie Imports” and also neglect of Ryder and facilitation by Ryder of criminal/unlawful conduct by “Sheila Marie Imports” 25 in violation Federal and State laws regulating interstate trucking/motor carriers. 65. Plaintiff requested all leases, payment records and other documents relating to any rental or lease of the motor vehicles involved, driven by the defendant Burke at the time of the occurrence giving rise to this lawsuit. 66. GFI Boston, LLC and Ryder did not respond to this demand other than to produce a 2-page “Rental Agreement”. Compliance, renewals, payment records, regulations and other documents referenced in the “rental agreement” had not been produced and Atlanta only provided the expired rental agreement. Plaintiffs’ Second Notice to Produce dated 8/4/10 67. Plaintiffs requested authorization for drug and alcohol testing for defendant Burke for May 1, 2008 through May 30, 2009. Ryder has not provided any response to this demand.’ GFI Boston, LLC and other defendants including the Atlanta defendants have not responded to this demand. This testing is required by both federal and state law and there is no privilege attending to these records as they are mandated by law. 68. The plaintiffs demanded the entire file maintained by Daniel Burke at his home for the incident of May 22, 2009. Defendant Burke testified he had a file at home but has not produced it. Additionally piaintiffs have demanded and defendants are required to produce all log books for Daniel Burke for May 2009. No defendant has provided any response to this demand even though driver logbooks are required as a matter of law. Log Books are required to be maintained under both the FMCSA and 3 The same information was requested in plaintiffs’ demand dated May 4, 2012 addressed in the court’s September 27, 2012 Order directing defendants to produce the same. 26 enabling federal regulations and parallel state laws and regulations. Mr. Burke testified to preparing logs and having turned them over to his employer “Sheila Marie Imports”. The records have not been produced nor any affidavit regarding the absence of such records. 69, As previously mentioned, all documents evidencing any lease or other arrangement between Ryder and the employer of Daniel E. Burke still have yet to be produced pursuant to plaintiffs’ demands. Ryder has not provided any response to this demand and has only produced a 2 page Rental Agreement. If this is the only document creating a rental agreement, then defendant needs to so state or produce any other records. This demand further requires production of records of both the “renter” and “rentee” of the tractor in question. In this regard both Ryder and GFI Boston, LLC, SM Foods, Inc. and Russell McCall’s, Inc. and Doug Jay are required to provide responses to this demand. 70. Plaintiffs demanded all documents evidencing any lease or other arrangement for the use, rental, lease or operation of any motor vehicle involved in the accident of May 22, 2009. Parties have only produced a 2 page Rental Agreement. The plaintiffs’ demand seeks production of a broader class of documents including emails, other computerized records and any other document of any sort that would constitute a valid lease for the tractor in question. No document has been produced between Ryder and any other defendant other than the 2 page rental agreement. If this is all that exists, the defendants must so state. 71. Defendants were also to provide reference books provided to defendant 27 Daniel E. Burke during training that may contain some information relevant to the Federal Motor Carrier Safety Act. 72, Daniel Burke indicated that he had some training materials and was in possession of reference book with information relevant to the FMCSA and is in compliance with the same. Mr. Burke has not produced this because even though he attested to having the same in his home at his deposition in the First Action.* 2011 ACTION 723. Defendants continued their pattern and practice of shirking discovery obligations after commencement of the 2011 action. Defendants ignored and refused to respond to numerous demands. Where defendants did respond, they responded with evasive answers and misrepresented facts. 74. At the outset plaintiffs note that none of the Court ordered discovery discussed below had been produced by defendants in its original electronic format. In fact, to the extent that any discovery related to GFIB has been court ordered and not produced in its original electronic format, it should be subject to the adverse inference charge imposed by the Court in its November 8, 2013 Order due to the destruction of GFIB’s computers by the Atlanta defendants. However, to the extent that the Atlanta defendants have been ordered to provide discovery and have failed to do so, either by paper documents, but in particular by producing electronically stored information, such * The same information was requested in plaintiffs’ demand dated May 4, 2012 addressed in the court’s September 27, 2012 Order directing defendants to produce the same. 28 as computer software downloads and emails, they should have their answer stricken and/or be precluded for failing to produce such documents in their original format. Plaintiffs’ Amended Fourth Notice to Produce 7. The discovery that plaintiffs demand in their Amended Fourth Notice to Produce, to which defendants were ordered to respond in the Court’s May 20, 2013 and October 16, 2013 Orders, goes all the way back to discovery identified as necessary by plaintiffs’ accounting expert, Thomas Fiorenza, CPA, in June, 2012. By way of background, in June, 2012, plaintiffs’ submitted Mr. Fiorenza’s affidavit in opposition to a June 2012 Order to Show Cause by the Atlanta defendants. Mr. Fiorenza explained in detail the nature and extent of the records that pl