The procedural posture in O’Brien v. Clarke Equipment Co., a recent Appellate Division, Third Department case, demonstrates how a continued refusal to respond to relevant discovery demands can completely undermine any defense in a products liability case.

The decedent in the matter was killed when a forklift that one of the defendants manufactured backed up and pinned him against a truck.  During discovery, the plaintiff requested accident reports of similar accidents concerning similar models of the forklift.  The defendant manufacturer and successor corporation refused to turn over the reports and did not do so even after they were compelled by Supreme Court.  On top of this evasive behavior, a non-party destroyed the reports for a certain time limit after the defendants had received the discovery demands for them.

The Third Department upheld Supreme Court’s ruling that the defendants could not produce evidence to controvert that the decedent’s forklift had a forklift defect or that the defendants had notice of the defect.  The Court observed:

[T]he record shows that plaintiff twice demanded accident reports involving malfunctioning forklifts and, for more than four years thereafter, [the] defendants willfully failed to disclose the reports, permitted them to be destroyed and failed to reveal their destruction. For nearly two additional years, [the] defendants failed to produce the records that were then in existence and only gradually revealed that additional copies of the reports had been discarded. Although [the] defendants contend that there was no bad-faith destruction of the accident reports because they had deemed them to be unresponsive to [the] plaintiff’s second discovery demand and the reports were destroyed by a nonparty, Supreme Court had ample grounds for finding that the reports would have been responsive to the demands made by [the] plaintiff and [the] defendants were responsible for their loss.

Given this holding, I would assume the defendants’ next strategy is to settle the case as best as they can.  This case, in part, displays the adherence to the Court of Appeals’ declaration that court orders and rules should not be ignored, a point embraced recently in  Brill v. City of New York, Miceli v. State Farm Mut. Auto. Ins. Co., and Andrea v. Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C. (Habiterra Associates).