The discovery snafus in Kyoei Fire & Marine Insurance Co. v. M/V Maritime Antalya, 2007 U.S. Dist. LEXIS 74200 (S.D.N.Y. Oct. 4, 2007), defy brief description. Two of District Judge Loretta A. Preska’s instructive holdings:

1. Spoliation of Evidence Relevant Only to an Adversary’s Burden of Proof. The defendants argued that spoliation sanctions were inappropriate because the evidence they had spoliated was not relevant to any of the plaintiffs’ claims or defenses but only to an affirmative defense of their own. Hence, the argument goes, the lost evidence was not ‛relevant“ to the plaintiffs. Judge Preska disagreed: ‛Under Defendants' view, it would not be relevant if a party intentionally or willfully destroyed all of the adverse documents in its custody, possession, or control relating to an issue on which it had the burden of proof, thereby leaving only documents that support its position.“

2. Unprepared 30(b)(6) Witness. In response to a court order requiring the production of a witness to address specified subject matters, the defendants produced a witness unable to do so. Held, this is tantamount to a non-appearance subjecting defendants to Rule 37(b)(2) sanctions.

Under Rule 30(b)(6), when a party seeking to depose a corporation announces the subject matter of the proposed deposition, the corporation must produce someone familiar with that subject.... [T]he corporate deponent has an affirmative duty to make available such number of persons as will be able 'to give complete, knowledgeable and binding answers' on its behalf.... Producing an unprepared witness is tantamount to a failure to appear."

Pursuant to Rule 37(b)(2) and the inherent power of the court, Judge Preska order that a certain fact be taken as established as for purposes of the litigation.