Comments on Recent Cases: February 2026
Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions.
Litigation News Column About Remote Work in the Law
Litigation News published a column I wrote about how remote work technology has changed the practice of law. I noted that there are major benefits, and some drawbacks, but I believe the former outweigh the latter.
Court Refuses to Strike Answer as Penalty for Missing Deposition
When a court orders someone to appear for a deposition, the person must appear or get another court order to the contrary. The penalty for disobeying the order to appear, however, can vary. For witnesses who decline to appear, the penalty may be monetary. For parties to the lawsuit, the court may rule the person who failed to appear must lose, but that is not always the case.
For example, in a recent case before the state appeals court in Brooklyn, a defendant failed to appear for a deposition after being ordered to appear. The plaintiff asked the court to strike the defendant’s answer and let the plaintiff win by default. The court ruled that the defendant could not testify at the trial, but did not hold the defendants could not present any other defense. The appeals court affirmed the decision, noting that striking an answer and allowing a default is reserved for the worst violations of court orders.
Cases like this illustrate how courts consider how to penalize disobedience of discovery orders.
Court Refuses to Disturb Referee’s Discovery Decisions
When parties produce documents in litigation, lawyers often have to trust each other that they are complying with the rules of discovery. The penalties are harsh for lawyers who lie or hide documents that need to be disclosed. In some cases, the court will appoint a neutral third party to supervise this process instead of trusting the lawyers. Even this may not be enough to address a litigant’s concerns about proper disclosure, though.
For example, in a recent case before the state appeals court in Brooklyn, the trial court had appointed a referee to supervise discovery. The defendant and a third party withheld documents from production on the grounds of attorney-client privilege. The referee reviewed the documents and agreed with the decision to withhold the documents. The plaintiffs asked the trial court to reverse the decision, and it refused. They then asked the appeals court, which deferred to the trial court’s sound discretion.
Cases like this illustrate how difficult it is to challenge the discovery decisions of a neutral referee. In particular, it is consistent with my observation that judges do not like to get involved in discovery disputes.
Court Holds Meet-and-Confer Certification Insufficient
Many courts have litigation rules that require parties to “meet and confer” in good faith to resolve issues among themselves before asking the court to rule on a motion. These rules often require parties to certify to the court that they met and provide details about the meeting as a prerequisite for the motion.
For example, in another recent case before the state appeals court in Brooklyn, a plaintiff had asked the trial court to punish a defendant for failing to appear at his deposition. The plaintiff did not, however, include a detailed certification reflecting his efforts to discuss the issue with the defendants. The plaintiff’s filing was missing email receipts and the names of the lawyers and clerks involved in communications. Accordingly, the trial court denied the motion, and the appeals court affirmed that order.
Decisions like this illustrate how seriously courts take the rules that require parties to provide detailed proof that they met and conferred.