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Case 1:15-cv-07433-LAP Document 1330-16 Filed 01/05/24 Page 12 of 17 Psihoyos v. John Wiley & Sons, Inc., No. 11CV01416, 2012 WL 3601087 (S.D.N.Y. June 22, 2012) (refusing to grant adverse inference instruction where Plaintiff did not confer to obtain requested discovery, and noting “Plaintiff does not cite to a single case where an adverse inference instruction was ordered based on the late production of a document”).° Here, there was no delay in production — there was and is nothing additional to produce. All documents were produced well in advance of trial, prohibiting an adverse inference. Even if the Residential Funding factors were applicable, Plaintiff fails to carry her burden of proving those factors are present in this case. Defendant does not contest that she is obligated to comply with this Court’s Orders. She has done so. She has collected all of her electronically stored information, and run all agreed upon search terms — and then re-run the searches when Plaintiff further expanded her demands. The result of the application of these search terms is proof that she has been compliant with her discovery obligations all along. No new non- privileged documents were captured through utilization of the process demanded by Plaintiff. As Ms. Maxwell previously stated in response to the Motion for forensic examination, she had run comprehensive search terms, thoroughly reviewed her records and previously produced all responsive documents in her possession.’ The second factor, that “the party that failed to timely produce the evidence had ‘a culpable state of mind’” is likewise lacking. There is no claim of Defendant acting with a ° See also Phoenix Four, Inc., No. 05 CIV. 4837(HB), 2006 WL 1409413, at *7 (S.D.N.Y. May 23, 2006) (holding that a sanction as severe as an adverse inference was not warranted where defendants came forward with the evidence, even though it was after the close of discovery); Williams v. Saint-Gobain Corp., No. 00 Civ. 502, 2002 WL 1477618, at *2 (W.D.N.Y. June 28, 2002) (holding that no basis for adverse inference instruction existed where defendant failed to produce emails until the eve of trial and there was no evidence of bad faith); In re A & M Florida Properties II, LLC, No. 09-15173 (AJG), 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010) (declining to impose adverse inference instruction where documents were belatedly produced, but there was no bad faith). 7 Plaintiffs argument that she has been or will be prejudiced is illogical given that there are no documents that have not been produced, and there never have been any responsive documents missing from production. 10