of data, however, standing alone, may not prove that an interested party failed to act to the best of its ability. In cases, such as that presented here, where the respondent claims the inability to comply with the agency’s request for information, the “to the best of its ability standard” requires, at a minimum, “that a respondent could comply, or would have had the capability of complying if it knowingly did not place itself in a condition where it could not comply.” Nippon Steel Corp. v. United States, 24 CIT-,-, 118 F.Supp.2d 1366, 1378-79 (2000). Here, as in Borden, the Department made no finding that SAIL refused to cooperate or could have provided the information requested but didn’t, thereby justifying the use of adverse inferences. See Borden, 22 CIT at -, 4 F.Supp.2d at 1246 (<HOLDING>); see also U.S. Steel Group v. United States, —
holding that the trial court failed to exercise its discretion by stating that it did not have the ability to present the transcript to the jury holding that the departments reasoning that de ceccos failure to provide complete and accurate information in a timely manner and its failure to clarify inconsistencies in its submissions to the record demonstrate that de ceceo has failed to cooperate to the best of its ability in this investigation was not an additional finding that de ceceo had failed to act to the best of its ability but rather was a restatement of the facts available finding holding that the state failed to meet its burden when the record failed to show that the jurors would or would not be available after a weeks continuance recognizing a cause of action for a breach of fiduciary duty in failing to provide relevant information under section 502a3 of erisa where the fiduciary had knowledge that its failure to provide the participant andor his beneficiaries with complete and accurate information would mislead them as to the coverages in effect holding that a common law breach of contract action will lie for the insurers failure to comply with its obligation to act in good faith and with due care in representing the interests of the insured in its failure to settle with a third party