This is not a case where defendants lacked knowledge of discovery proceedings, and counsel, acting alone, violated the court's directions. See
Auscape Int'l, Soc'y, 2003 U.S. Dist. LEXIS 561, at * 16, 2003 WL 139213. On the contrary, defendants took a “hands on” approach throughout the pretrial proceedings, were well aware of plaintiffs' discovery requests, and helped to formulate defendants' evasive strategy. In communications with counsel, defendants evidenced their involvement. As one example, in the February 21st, 2010, email, Sikirski suggested to Kogan that “we shouldn't give” 2,579 “strictly-business” emails and 15,493 emails “including trade secrets” that were requested by plaintiffs. Kogan Affirm., Ex. 10. Another document prepared by Sikirski directly addressed one of plaintiffs' discovery requests, the subject of the first motion for which Judge Reyes recommended sanctions, and listed Ana Boves' detailed response to each request, which documents defendants had already collected, and why whole categories should or should not be produced. Kogan Affirm., Ex. 12. Further, the communications reveal a pattern of defendants' resistance to discovery over the course of the litigation, where defendants seek to condition the production of documents on plaintiffs' reciprocal productions, and assert “trade secrets” and attorney-client privilege protection on whole categories of communications. Kogan Affirm., Exs. 2, at 10–14.
Moreover, despite their argument that they were surprised by the motion for sanctions and Judge Reyes' recommendation, defendants frequently referenced discovery conferences before Judge Reyes, repeatedly prompting arguments to counsel for resisting discovery, and acknowledged awareness of plaintiffs' threatened sanctions motions. Kogan Affirm., Exs. 5, 6 (noting that plaintiffs were “threatening to file complaints to the judge”). On this evidence alone, defendants could be sanctioned for their own discovery misconduct, as well as that of their counsel. The court the adheres to Judge Reyes' reasoning in the First R & R that has only been bolstered by communications between defendants and counsel that have since come to light.