JURISDICTION: NEW YORK

This template applies to New York State courts (Supreme, Family, Appellate Division) governed by CPLR, DRL, FCA, and 22 NYCRR.

NOTICE OF NON-COMPLIANCE — OPPOSING COUNSEL

[NY] Demand for Good Faith Compliance with Discovery and Procedural Rules

⚠️ Before Using This Template

When to Use Notice to Opposing Counsel

USE this template when:

Opposing counsel failed to respond to discovery requests within statutory timeframe
Counsel made misrepresentations to court that remain uncorrected
Discovery responses are inadequate and no good faith meet-and-confer occurred
Counsel violated court orders regarding disclosure or filing deadlines
Pattern of professional misconduct affecting your case

DO NOT use this if:

Discovery deadline hasn't passed yet or extension was granted
You disagree with objections but haven't met and conferred
Misstatement was corrected or is immaterial to the case
This is strategic disagreement about legal interpretation
You haven't attempted informal resolution first

Appropriate example: Discovery requests served 60 days ago; no response despite 3 follow-up emails and court deadline; need to preserve record before motion to compel.

Inappropriate example: Opposing counsel filed brief arguing different legal interpretation than you prefer (that's advocacy, not misconduct).

Try These Steps First

Before sending this notice:

Review court rules to confirm deadlines and requirements
Email opposing counsel requesting compliance with specific deadline
Meet and confer in good faith about discovery disputes (often required before motions)
Send letter before action giving reasonable additional time to comply
Check for extensions that may have been granted
Document all attempts at informal resolution

Document everything: Discovery requests, responses, emails, meet-and-confer notes.

Resource Requirements & Consequences

⚠️ Important Considerations:

Timeline: May resolve in days or require motion to compel (weeks/months)
Costs: May lead to motion practice with associated time and fees
Relationship: Will damage professional relationship with opposing counsel
Court preference: Judges strongly prefer parties resolve discovery disputes informally
What this achieves: Creates record for motion to compel; may prompt compliance; preserves sanctions argument
What this does NOT do: Compel production (need court order); guarantee sanctions

Alternatives to consider:

Meet and confer: Good faith discussion often resolves discovery disputes
Stipulated extension: Agree to reasonable additional time
Motion to compel: If informal methods fail (CPLR §3124)
Sanctions motion: For egregious violations (CPLR §3126, 22 NYCRR §130-1.1)
Grievance complaint: Only for serious ethical violations (22 NYCRR Part 1240)

Best practice: Use this after good faith attempts to resolve informally; preserves record before motion to compel; demonstrates reasonable efforts to avoid court intervention.

TO: {{Counsel Name}}, Esq., Counsel for {{Opposing Party}} FROM: {{Your Name}}, {{Pro Se / Counsel for Party}} DATE: {{Date}} CASE: {{Caption}} | Index No. {{Number}} COURT: {{Court Name and County}} SUBJECT: Notice of Non-Compliance with Discovery, Disclosure, and Ethical Duties

Legal Authority

You are bound by:

RPC 3.3: Candor toward the tribunal; duty to disclose controlling adverse authority
RPC 3.4: Fairness to opposing party and counsel; no obstruction of access to evidence
RPC 8.4: Prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation
CPLR Article 31: Disclosure (discovery) procedures and enforcement
22 NYCRR §130-1.1: Sanctions for frivolous conduct

Identified Deficiencies

As of {{date}}, you have failed to:

Respond to discovery: No response to {{document requests / interrogatories / notice for deposition}} served on {{date}}, now {{X}} days overdue.
Produce documents: Failed to produce {{category of documents}} as ordered by the court on {{date}}.
Provide required disclosures: No {{automatic disclosure statement / witness list / expert disclosure}} as required by {{rule/order}}.
Correct misrepresentations: Misstatements in {{pleading/brief/oral argument}} regarding {{specific factual or legal claim}} remain uncorrected despite {{prior notice/order}}.
{{Additional deficiencies as applicable}}

Demand

You are demanded to:

Provide complete responses to outstanding discovery requests within {{X}} business days.
Produce documents as ordered or provide privilege log and legal basis for withholding.
Correct misrepresentations by filing amended {{pleading/brief}} or written stipulation acknowledging error.
Confirm compliance in writing to all parties and the court.

Preservation and Remedy

This notice preserves the record for:

Motion to compel discovery (CPLR §3124, §3126)
Motion for sanctions under CPLR §3126, 22 NYCRR §130-1.1
Grievance complaint for violation of RPC 3.3, 3.4, 8.4 (22 NYCRR Part 1240)
Preclusion of evidence or issues due to discovery non-compliance

Failure to comply may result in motion practice seeking adverse inference, preclusion, costs, and attorney disciplinary referral.

Service

Served via {{NYSCEF / email / certified mail}} on {{date}}.

Certification of Service

I certify that this Notice of Non-Compliance was served upon {{Counsel Name}} via {{method}} on {{date}}.

Procedural Compliance Framework

Notice of Non-Compliance - Opposing Counsel