In Palm Bay Int'l, Inc. v. Marchesi di Barola S.P.A., 2009 U.S. Dist. LEXIS 104020 (E.D.N.Y. Nov. 9, 2009), U.S. Magistrate Judge A. Kathleen Tomlinson granted, in part, defendant's motions to compel production of documents, including electronically stored information and, while acknowledging the lawyers desire to be "zealous advocates", cautioned both parties of the need to meaningfully meat and confer.

Plaintiff brought this action to recover damages allegedly sustained from defendant's sale and shipment of defective wine.  Plaintiff had entered into a sales agreement to resell the wine to over 600 Olive Garden Restaurants, but the deal was cancelled when Olive Garden began returning the wine. In discovery, defendant sought financial records and damages information from plaintiff in an electronic format.  The court ordered the production of the information in its electronic format, noting that the parties were already scheduled to confer regarding defendant's need to obtain a license to review information stored on plaintiff's proprietary databases.

Defendant also sought sanctions for plaintiff's failure to produce documents related to its agreement with Olive Garden pursuant to a prior court order.  Plaintiff contended, among other things, it did not need to produce the documents since it had already produced 7,500 documents, including some related to the Olive Garden agreement.  The court disagreed.  "The fact that some of the documents are duplicative diminishes their significance but does not obviate the obligation to produce them. Defendant has the right to obtain the documents from more than one source." However, the court found that plaintiff did not act in bad faith in withholding the documents.  Rather, the court found plaintiff's efforts "reflect a degree of carelessness and lack of attention to detail."  The court declined to issue sanctions, but gave defendant a short window of time to provide the court with supplemental information that would justify re-opening certain depositions.  The judge noted that this discovery dispute probably could have been avoided altogether. "Although the Court understands the desire for zealous representation of clients, both sides here have an obligation to do a more effective job with regard to their compliance with [their] ‘good faith meet and confer' obligations."