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Case 1:15-cv-07433-LAP Document 1327-19 Filed 01/05/24 Page 17 of 21 The Second Circuit has stated, “[w]here documents, witnesses, or information of any kind relevant issues in litigation is or was within the exclusive or primary control of a party and is not provided, an adverse inference can be drawn against the withholding party. Such adverse inferences are appropriate as a consequence for failure to make discovery.” Bouzo v. Citibank, N.A., 1993 WL 525114, at *1 (S.D.N.Y. 1993) (internal citations omitted). The Defendant’s continued systemic foot-dragging and obstructionism — even following the Court’s June 20 order — makes an adverse inference instruction with regard to Defendant’s documents appropriate. An adverse inference instruction is appropriate when a party refuses to turn over documents in defiance of a Court Order. See Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461, at *1 (S.D.N.Y. May 2, 2005) (denying application to set aside Magistrate Judge Peck’s order entering an adverse inference instruction against defendant for failure to produce documents that the Judge Peck had ordered Defendant to produce). Accordingly, because a “party’s failure to produce evidence within its control creates a presumption that evidence would be unfavorable to that party” an adverse inference should be applied with respect to Defendant’s failure to produce “in order to ensure fair hearing for [the] other party seeking evidence.” Doe v. U.S. Civil Service Commission, 483 F. Supp. 539, 580 (S.D. N.Y., 1980) (citing International Union v. NLRB, 148 U.S. App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41 (D.C.Cir.1972)). “An adverse inference serves the remedial purpose of restoring the prejudiced party to the same position he would have been in absent the wrongful destruction of [or willful refusal to produce] evidence by the opposing party.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 222 (S.D.N.Y. 2013) (granting an adverse inference when defendants refused to produce documents pursuant to the District Court’s order). Where “an adverse inference ... is sought on the basis that the evidence was not produced in time for use at trial, the party seeking the instruction must 17