UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BARCROFT MEDIA, LTD. et al., Plaintiffs, -v- COED MEDIA GROUP, LLC,
MEMORANDUM OPINION AND
JESSE M. FURMAN, United States District Judge:
Plaintiffs, providers of entertainment-related photojournalism and owners of
celebrity photographs, bring intellectual property claims against Defendant Coed
Media Group, LLC (“CMG”) relating to the allegedly infringing use of certain
celebrity photographs (the “Images”) on CMG’s pop culture and celebrity gossip
websites. In connection with the parties’ filing of their proposed Joint
Pretrial Order, Plaintiffs filed two motions: a motion, pursuant to Rule 37 of
the Federal Rules of Civil Procedure, for spoliation sanctions, (Docket No. 38);
and a motion in limine to preclude the trial testimony of Robert Coakley,
(Docket No. 41).
Plaintiffs’ motions are without merit. First, they move
for spoliation sanctions on the ground that CMG failed to preserve the webpages
on which it had displayed the Images (the “Webpages”). (See Docket No. 38).
Although unmentioned by Plaintiff, the relevant provision of Rule 37 was amended
in 2015 to state that a court may impose sanctions “[i]f electronically stored
information that should have been preserved in the anticipation or conduct of
litigation is lost because a party failed to take reasonable steps to preserve
it, and it cannot be restored or replaced through additional discovery.” Fed. R.
Civ. P. 37(e). If the court finds prejudice to the other party from such “loss,”
it may “order measures no greater than necessary to cure the prejudice.” Fed. R.
Civ. P. 37(e)(1). A court may impose more severe sanctions “only upon finding
that the party acted with the intent to deprive another party of the
information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2); see generally
CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 495-96 (S.D.N.Y. 2016)
(discussing the amended Rule 37(e)).
Given the plain language of the
Rule, Plaintiffs’ motion borders on frivolous, for the simple reason that they
cannot even show that the evidence at issue was “lost.” Several of the Images
are still hosted on CMG’s websites. (See Docket No. 47 (“Def.’s Mem.”), at 19).
And the record makes clear that Plaintiffs themselves possess copies of the
other Webpages — in the form of screen captures taken when they displayed the
Images (the “Screenshots”). (See Docket No. 14, Ex. 1; Docket No. 40-5, at 2).
In fact, Plaintiffs themselves list the Screenshots as trial exhibits. (See
Docket No. 36, at 15). Given that (plus the fact that Defendant does not dispute
the authenticity of the Screenshots (see id.) or deny that it hosted and
displayed the Images (see
Def.’s Mem. 16-18)), there is no foundation to
impose sanctions under Rule 37(e). And to the extent that there were a
foundation, sanctions would be inappropriate because there is no evidence
whatsoever that Defendant “acted with the intent to deprive another party of the
information’s use in the litigation,” Fed. R. Civ. P. 37(e)(2), and Plaintiffs
obviously cannot show prejudice “as [they] actually possess copies” of the
relevant evidence, Mestecky v. N.Y.C. Dep’t of Educ., No. 13-CV-4302 (CBA)
(VMS), 2016 WL 8677285, at *5 (E.D.N.Y. Feb. 5, 2016), reconsideration denied,
2016 WL 756566 (E.D.N.Y. Feb. 26, 2016).
Plaintiffs’ motion to preclude
the testimony of Robert Coakley is without merit, substantially for the reasons
stated in Defendant’s memorandum of law in opposition to the motion. (Docket No.
44). It is true that Defendant failed to list Coakley in its initial disclosures
and to supplement its disclosures with his name, in technical violation of Rule
26(a) and (e) of the Federal Rules of Civil Procedure. But that violation was
plainly harmless and thus not a basis for preclusion, see Fed. R. Civ. P.
37(c)(1) (allowing for preclusion of a witness who was not properly identified
“unless the failure [to disclose] . . . is harmless”), as Plaintiffs have
indisputably known about Coakley for months (and, on top of that, have been
privy to Coakley’s direct testimony since July, when it was submitted in
affidavit form in accordance with the Court’s procedures). See, e.g., Coty Inc.
v. Excell Brands, LLC, No. 15-CV-7029 (JMF), 2017 WL 4155402, at *12 n.8
(S.D.N.Y. Sept. 18, 2017) (declining to preclude a witness because the witness’s
testimony was disclosed to the moving party “over a month and a half before he
actually testified”); EMI Music Mktg. v. Avatar Records, Inc., 334 F. Supp. 2d
442, 445 (S.D.N.Y. 2004) (finding that the failure to formally disclose
witnesses was harmless because the moving party “was aware of their existence
and relevance,” as the witnesses had been mentioned in discovery responses and
their names had appeared in documents produced through discovery); Rojo v.
Deutsche Bank, No. 06-CV-3574 (HB), 2009 WL 3790191, at *5 (S.D.N.Y. Oct. 30,
2009) (declining to preclude witness testimony where “all of the challenged
witnesses were referred to in documents produced in discovery”). Further, upon
review of Coakley’s direct testimony, there is nomerit to Plaintiffs’
contentions that Coakley’s testimony is irrelevant or improper expert testimony.
That said, the Court has a separate concern with respect to the Google Analytics
data (marked as Defense Exhibit 17) and Coakley’s testimony concerning those
data — namely, that the data are inadmissible hearsay. The parties should be
prepared to address that issue at the final pretrial conference on October 10,
Accordingly, Plaintiffs’ motion for spoliation sanctions and
motion in limine are DENIED. The Clerk of Court is directed to terminate Docket
Nos. 38 and 41.
Date: September 28, 2017
York, New York
Barcroft v. Coed Media Group.pdf