Cherkassy ( The ) v. Far-Eastern Shipping Co.
T-891-94
Hargrave P.
15/12/99
10 pp.
Motion to dismiss action for US$350,000 for wetting damage to portion of cargo of dried peas on ground of breaches of four successive orders for production of specific, relevant available documents-Loss occurring in 1993, action commenced in 1994-Affidavit of documents, produced in 1996 deficient as containing little or no material as to sale, storage, handling or final disposition of cargo of peas, despite ample time for plaintiffs to determine what required to prove case-Defendant obtaining order requiring production of documents by which to establish sound market value of cargo in March 1999-When plaintiffs failed to comply, defendants obtaining second order again requiring production of all documents previously ordered-Plaintiffs ignored second order-Defendants obtaining third specific order as to what must be produced-Plaintiffs obtaining extension of time for production (fourth order)-Defendants established on discovery original computer printouts done for tax purposes in warehouse in eastern India-Also established discovery witness knew four outstanding Federal Court orders for production of specific documents, but reasoned as similar material might be produced by computer not necessary to produce earlier specific material-No explanation for failure to produce accessible specific documents in face of four clear, specific Court orders-Plaintiffs not seeking to mitigate situation by offering, either by affidavit or even by letter to bring documents from warehouse-Nature of information stored electronically in computer not at issue, but breach of four Court orders without any excuse-When failure to comply conduct amounting to abuse, action will be terminated-Action dismissed by reason of abuse of process-As sanction of having large claim struck out sufficient to bring home point to wayward litigant, award of costs mid-range in Column III sufficient.