Delays aside, the proffer by defendants of summaries (even if not limited to settlement purposes) is not a substitute for production of the raw data on which the summaries are based. Plaintiff is not required to take such summaries—apparently prepared exclusively for the litigation—on faith. Moreover, while this proposition is true in all cases, it is especially so here, where the credibility of defendants is in serious question. As plaintiff has documented, the small number of each of the allegedly infringing garments that Forever 21 has admitted ordering (and selling) seems highly questionable in view of the hundreds of stores that the company supplies. (See
Reply Decl. of Gregory Gulia, Esq., executed Dec. 16, 2008 6–7). Moreover, the three different sets of summaries supplied by defendants (all but the last solely for settlement, and not for discovery) are inconsistent with each other, raising further questions as to their accuracy. (See
Hew Reply Decl. 6–18). In addition, as noted, defendants have made a series of manifestly false statements over a period of many months about the non-existence or inaccessibility of essential corporate records involving documentation of purchases, distribution, and sale of the allegedly infringing garments—and this too puts in serious question the trustworthiness of their representations as to the accuracy of their data. Finally, we note the extraordinary litigating history of this company, which raises the most serious question as to whether it is a business that is predicated in large measure on the systematic infringement of competitors' intellectual property. (See
Mem. & Order (regarding Defs.' Motion for a Protective Order) dated March 10, 2009 at 3 (citing Decl. of Vanessa Hew, Esq., executed Dec. 24, 2008 5)).