The motion lacks merit. Defendants urge that the document production of the other parties has been deficient and in bad faith, as evidenced by their paltry production of only a handful of documents. (Mot. at 1, 5). They ask the Court to order the parties to “use a to-be-agreed-upon set of search terms to locate and produce documents in good faith” and to permit them to conduct additional depositions based on the new documents. (Id. at 1). Defendants raised this very same issue over three years ago before Magistrate Judge Anne Shields. (See Mot. for Pre-Mot. Conference dated Jan. 23, 2018 (“Jan. 2018 Mot.”), Dkt. No. 67; Order dated Jan. 24, 2018). (In the interim, the case was transferred to Magistrate Judge Steven Gold and then to the undersigned). On January 23, 2018, Defendants alleged that Plaintiffs were acting in bad faith and sought relief similar to that being sought now:

(Jan. 2018 Mot. at 4). Judge Shields ruled on the request:

(Order dated Jan. 24, 2018). After that hearing, there was a Third Amended Complaint filed in April 2020, (Third. Am. Compl. dated Apr. 6, 2020 (“TAC”), Dkt. No. 117), and additional discovery was served. According to Defendants, Plaintiffs and Park 700 produced four documents, a total of nine pages, none of which was a text message or email. (Mot. at 1). And they claim that through third-party subpoenas they obtained documents that should have been produced by Plaintiffs and Park 700. (Id. at 3). As a result, they seek essentially the same relief they sought three years ago from Judge Shields. Nothing material has changed that would counsel a different result now. There has been additional activity in the case, but nothing suggests that Judge Shields's observation and assumptions—that Plaintiffs and Park 700 acted in good faith—were misplaced.

“The burden is on the party seeking to compel discovery to cast doubt on the responding party's assertion that it does not have the requested information.” Gary Friedrich Enters., LLC v. Marvel Enters., Inc., No. 08-CV-1533, 2011 WL 2623458, at *1 (S.D.N.Y. June 21, 2011) (collecting cases). Defendants have not met that burden.

Defendants say that “it is inconceivable” that there are not more documents in the production. (Mot. at 5). But without providing any factual basis for their conclusion, Defendants are only, again, making empty assertions. “[O]pposing parties will often find an adversary's search methodology lacking. As a result, a party's assertion that its adversaries’ search methodology was unreasonable is virtually always insufficient absent some concrete evidence pointing to the existence of missing documents.” Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Coop., No. CV 15-CV-6480, 2020 WL 3498161, at *4 (E.D. Pa. June 29, 2020). There is no such concrete evidence here. Defendants did not—as they could have—serve renewed interrogatories about the process for collecting and searching documents. Such discovery could have established that there were documents that existed but were not produced. 8 Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 2012 (3d ed. 2021) (“A party may inquire at a deposition or through interrogatories about the existence and location of documents and things and use this information to obtain production or inspection of the document or thing, if it is subject to discovery, by request under Rule 34 or subpoena under Rule 45.”); e.g., Haroun v. ThoughtWorks, Inc., No. 20-CV-100, 2020 WL 6828490, at *2 (S.D.N.Y. Oct. 7, 2020) (“Plaintiff can inquire at deposition both about the documents that have been produced and those that have not been produced and can review the document production itself for obvious gaps. If it creates a record, it may have a basis for discovery on discovery. It does not have such a basis now.”). They also do not cite to a provision of any electronic discovery protocol (presumably because one does not exist) that Plaintiffs and Park 700 breached in conducting their search for electronic documents.[2]

When parties assert that they have produced all responsive documents—as Plaintiffs and Park 700 told Defendants, (see Ex. M dated Feb. 18, 2021 attached to Mot., Dkt. No. 151)—and the adversary believes the production is incomplete, the remedy is not to pound the table and ask the Court to order additional production. A court cannot order a party to produce that which does not exist. Sanchez v. County of Sacramento, No. 19-CV-1545, 2020 WL 1984174, at *4 (E.D. Cal. Apr. 27, 2020) (“In the absence of evidence to the contrary, plaintiff is required to accept defendant's response to this request that, despite a diligent search, no responsive documents exist.”). The remedy is to ask for a declaration (or deposition) that outlines the practices and procedures used to collect and produce documents. And on the basis of the answers received, outline to the Court the steps not taken, and identify with specificity the categories and types of documents that should have been, but were not, produced. The remedy is not to demand production again and seek depositions based on the production that is ordered. There is nothing to produce.

Defendants have not taken the necessary predicate steps. Instead, they make the same assertions they did three years ago about document production. Judge Shields directed both sides in 2018 to respond to an interrogatory about their document production. After receiving that response, Defendants could have taken affirmative steps to seek discovery relief and identify with specificity the categories of documents that are allegedly missing. Instead, it appears no steps were taken to follow-up, which makes this most recent allegation of bad faith and incomplete production ring hollow.

The evidence that Defendants do muster does little to establish that either documents were missing or that Plaintiffs and Park 700 acted in bad faith. They cite to a letter produced by the Rosen Law firm, which they allege should have been in the production, but they do not tie that letter to the specific request for production that they believe should have contained the letter. (Mot. at 3). But that is a minor problem; the bigger issue is that they did not identify how the letter establishes that there are other documents that should have been produced, or why the copy of the letter should have been in Plaintiffs’ or Park 700's files. The fact that Plaintiffs and 700 Park “ha[ve] not produced certain documents does not mean that they possess them but are refusing to produce them,” making Defendants’ proposed remedy of ordered production anew inapposite. 246 Sears Rd. Realty Corp. v. Exxon Mobil Corp., No. 09-CV-889, 2011 WL 13254283, at *2 (E.D.N.Y. Apr. 1, 2011).

Nor does the deposition testimony of Brian Sidman, excerpted in the letter, assist Defendants’ arguments. (Mot. at 3–5). The testimony does not establish that Sidman's collection was incomplete, but rather that he could not recall various aspects of the document collection or production. No inference of bad faith can be drawn from the lack of recollection. And the supporting discovery responses,[3] averring that a search and production of all responsive was conducted, which Defendants have failed to rebut or discuss in any meaningful manner, are sufficient to deny the motion to compel—even in the face of an assertion that there was a document that should have existed but not produced. “Under ordinary circumstances, a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production[.]” Bank of New York v. Meridien BIAO Bank Tanz. Ltd., 171 F.R.D. 135, 152 (S.D.N.Y. 1997) (quoting Doe I v. Karadzic, No. 93-CV-878, 1997 WL 45515, at *6 (S.D.N.Y. Feb. 4, 1997)).

Defendants “fail[ ] to offer anything more than hypothetical inferences in support of [their] claim” that Plaintiffs and 700 Park “ha[ve] engaged in the sort of misconduct that would merit discovery on discovery.” 246 Sears Rd. Realty Corp., 2011 WL 13254283, at *4. For these reasons, the motion to compel is denied, and the attendant motion for an extension of the discovery schedule is likewise denied. E.g., Kaye v. N.Y.C. Health & Hosps. Corp., No. 18-CV-12137, 2020 WL 283702, at *2 (S.D.N.Y. Jan. 21, 2020) (“It is only if a party can articulate a good faith basis to do so by identifying some deficiency in the production, as is well-settled, that an inquiry into the producing party's methodology would be appropriate. Moreover, such an inquiry must be proportional to the facts and circumstances of the case. Plaintiff has not met her burden on the current record.” (citation omitted)); Pegasus Imaging Corp. v. Northrop Grumman Corp., No. 07-CV-1937, 2009 WL 2634228, at *3 (M.D. Fla. Aug. 24, 2009) (“Northrop completed a search for responsive documents and produced three documents to Pegasus. Based on the record, the court will not compel Northrop to produce what it says it does not have or what it has already produced. Furthermore, the two documents cited by Pegasus do not demonstrate that Northrop has withheld responsive documents. Based on Northrup's unequivocal representation that all responsive documents have been produced and that no documents have been with[h]eld on the grounds of privilege, the motion to compel is denied.”).

SO ORDERED.