Giuffre_Maxwell_Batch1_p00719.png

Case 1:15-cv-07433-LAP Document 1320-33 Filed 01/03/24 Page 10 of 24 (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be hear (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)G)—(vi). “Under Rule 37(b)(2), courts enjoy broad discretion to sanction parties that fail to obey discovery orders. This discretion includes, but is not limited to, the power to issue an order “dismissing the action or proceeding in whole or in part.’” Naguib v. Pub. Health Sols., No. 12- CV-2561 ENV LB, 2014 WL 3695965, at *3 (E.D.N.Y. July 24, 2014), appeal dismissed (Nov. 5, 2014). In “exercise [ ] its broad discretion to order sanctions under Rule 37,” a court may consider a number of factors in issuing sanctions for failure to comply with a Court Order, “including: (1) the willfulness of the non-compliant party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the noncompliant party had been warned of the consequences of his non-compliance.” Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y.2002); see also S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (same). This list is not exclusive, and many courts also consider the prejudice to the opposing party in determination of the sanction that should be awarded. See id. (factors not exclusive); Labib v. 1141 Realty LLC, No. 10 CIV. 8357 MHD, 2013 WL 1311002, at *7 (S.D.N.Y. Mar. 29, 2013)(examining the prejudicial impact of the non-compliance).