The basis for the request for a forensic computer examination is that defendants have admitted that at least one invoice produced in discovery was created after the commencement of the lawsuit even though the transaction that it represents was undertaken in the past. (George R. N'Namdi Dep. at 91-97).
Plaintiff suggests that a forensic examination would determine when documents produced to plaintiff were in fact created.
The record amply reflects that defendants' record keeping was episodic at best, and it appears as well that existing documentation was inaccurate and possibly manufactured for this litigation. What the consequences of this chaos may be for plaintiff's claims remains to be seen, but by plaintiff's own account the record now reflects the blatant inaccuracy of the defendants' records and their apparent willingness to manufacture evidence after the fact.
Under these circumstances, plaintiff adequately proffers at least a theoretical basis for conducting a forensic examination of any computer that was utilized by defendants to create documents produced in discovery. In so finding, however, we note two concerns with plaintiff's request. First, it is unclear what the procedures would be for such an examination, and its scope. There is no indication in plaintiff's papers that she has consulted an appropriate specialist, much less constructed a format for the examination that she is proposing. We are not inclined in any event to approve testing without a specification of purpose, methodology and time-frame.
Second, neither side in this case has moved with anything resembling efficiency to date, and we are concerned that authorizing such testing without a tight deadline for accomplishing whatever may be required will invite still further delay. This too counsels against open-ended approval of an unspecified testing regime.
In view of these considerations, we direct that if plaintiff wishes to undertake a forensic examination of any computer, she is to provide a detailed affidavit by a specialist who would conduct such testing, in which a precise specification is provided as to what is to be done, for what purpose and in what period of time. This submission is to be made by no later than December 11, 2006. Defendants may respond by no later than December 14, 2006.
*2 As for plaintiff's request for more financial documents, she fails to specify what categories of documents she seeks and has been denied. What she does is to document that she requested numerous categories of relevant information from defendants, that defendants' counsel represented at various stages to her attorney and to the court that full production had been made, and that these assurances proved to be false, most recently when defendants produced additional documents as recently as late October. With this record in mind, we grant this aspect of plaintiff's motion only to the following extent: Defendants are directed to produce any remaining documents in their possession, custody or control that are responsive to plaintiff's requests and that are transaction-specific by no later that December 11, 2006.
At the same time they are to supply an affidavit by one of their number (not their attorney) representing that they have produced all documents heretofore requested by plaintiff.
As a related matter, it appears that plaintiff wishes to further depose two of the defendants-George and Jumaane N'Namdi-based on the production of documents in October. We are, once again, unclear as to the precise scope of plaintiff's wishes in this respect, most specifically what additional topics need to be covered and how much time would be required in light of recent production of documents. If plaintiff wishes to pursue this matter, she is to do so by an application that specifies precisely what she seeks and why.
Plaintiff next asks for discovery of defendants' net worth. This issue was previously raised by plaintiff, and we deferred it pending further discovery as to the merits, to determine whether there was a conceivable basis for plaintiff to seek punitive damages. We are now satisfied from the current record that there is a colorable basis for such a demand, and hence we authorize plaintiff to serve a document request and other written discovery on defendants to pursue matters relevant to net worth. Plaintiff is to serve her requests within seven days.
Finally, plaintiff asks for an extension of discovery. The principal justification for this request is the recent addition of another defendant, although, as we noted on an earlier occasion, plaintiff long knew the identity of this individual-an alleged purchaser of artwork from the defendants-and could have pursued discovery from him without adding him as a party. In any event, we extend the deadline for completion of all fact discovery to January 30, 2007. In view of the extensions previously granted and the generally glacial pace of all parties' performance thus far, it is reasonable to assume that this deadline is final.