The Plaintiffs, Donald and Linda Murray (collectively, the “Murrays”), brought an Action against a multitude of Defendants who were involved in constructing their home. The Murrays alleged, inter alia, that the Defendants were negligent and breached the construction contracts. The matter proceeded to Trial.

The Murrays relied on the expert opinion and report of Mr. Demitt (“Demitt Report”). The Demitt Report relied, in part, on a video that the Murrays had provided him. The video had not been provided to the Defendants. One Defendant, Windsor Brunello Ltd. (“WBL”), argued that the Court should make an adverse inference against the Murrays for failing to produce the video. The Court rejected this argument, noting that generally a party in civil lawsuit who takes the position that undisclosed records are relevant and material, and should have been disclosed by the opposing party, brings an Application pursuant Rule 5.11 to obtain a ruling on the contested disclosure prior to Trial. WBL did not do so.

Ultimately, the Murrays were successful, and WBL was ordered to pay $914,946.49 in damages.