As one of my attorney mentors once said, mistakes can happen – it’s what you do upon learning of the mistake that counts.
In Barbera v. Grailed, LLC, plaintiff photographer was sanctioned for failing to comply with discovery in the Southern District of New York. The picture in question was of Jonah Hill that was published on a fashion website without permission.
In November of 2024, the defendant filed its first motion for sanctions, citing plaintiff’s inability or refusal to timely respond to discovery. One week later, the court issued an order compelling plaintiff to supplement responses to their written discovery. A month after that, the defendant filed a second motion for sanctions on the basis that plaintiff hadn’t complied with the court’s order. And in a third motion, defendant said plaintiff had not served initial disclosures as required by statute.
Plaintiff’s discovery responses remained deficient despite the court’s order. Plaintiff’s attorney attempted to justify the failure by blaming his paralegal for sending the documents to the defense attorney’s email address at her prior law firm, to which the court replied that the readily available email address on file was current. Furthermore, the paralegal had previously sent things to the defense attorney’s current email address before the mistake. In any event, it was not established that initial disclosures were sent in October and by March of this year, the defendant’s counsel said that they had still not received Plaintiff’s initial disclosures.
The Federal Rules of Civil Procedure specifically says that discovery papers can be served through electronic means, but the service is not effective if the filer or sender learns that it did not reach the person who was served. The court concluded that, because there was never confirmation that the defendant’s attorney had received the disclosures, it was inexcusable not to serve the initial disclosure again. The court also noted that an attorney is responsible for the actions of the non-lawyers acting at the attorney’s direction. The defendant sent Plaintiff a detailed letter outlining the violations, including the failure to serve initial disclosures and throughout this Plaintiff did not correct that error.
Plaintiff attempted to cancel and did not attend his deposition. The deposition had been scheduled for October, and the day before the notice date of the deposition, the court reporter told defendant’s counsel that plaintiff’s counsel had told them that the deposition was not going to go forward. Defendant “held” the deposition, making a record with the court reporter that plaintiff had not shown up.
Plaintiff’s attorney asserted that when a party does not confirm a deposition, it means the deposition was effectively canceled. The court countered that there wasn’t any rule that said that. The judge went on to say that “telephones work both ways,” and plaintiff could have called, emailed, or sent a message in some way to say they were not available on that scheduled date. Even if plaintiff believed the date was subject to change, the judge said, it was plaintiff’s obligation to raise the issue if they were unavailable on that date. Plaintiff chose not to do so, and attempted instead to cancel the deposition by speaking to the vendor only the day before it was scheduled.
Lastly, plaintiff served responses and objections after the deadline for timely responses had passed. Plaintiff also failed to produce responsive documents which either must exist, or which plaintiff indicated that it would produce. The federal rules dictate that failure to timely respond, or object to a discovery request, waives any objection that may have been available.
The court was willing to believe plaintiff’s claims that the productions were complete and that it had produced all the responsive documents that existed. The court credited those representations and did not impose sanctions based on Plaintiff’s late and purportedly incomplete productions.
However, supplemental productions were found inadequate because plaintiff withheld responsive documents, alleging a host of objections, but asserting objections too late. These included 523 emails on the basis of attorney-client privilege and other documents on the basis of non-disclosure agreements with other entities. (Read: settlement agreements with other defendants whom the photographer had sued.)
Everything was teed up for the greatest of all sanctions: dismissing the case. But the court said the defendant did not show that only the sanction of dismissal would be sufficient to compel plaintiff to comply, and therefore dismissal was not warranted. The court decided to award preclusive and monetary sanctions instead but reserved the right, however, to revisit the issue if plaintiff’s pattern of noncompliance continued. Plaintiff was ordered to sit for an in-person deposition at his own expense, and would be precluded from providing testimony to any other witness besides himself, because he hadn’t identified any witnesses in the initial disclosures that were never produced. Plaintiff would be required to provide responses to defendant’s interrogatories and to serve those initial disclosures within seven days of the order. Plaintiff was also ordered to produce all responsive documents and anything that was withheld on the basis of privilege or non-disclosure agreements, or any other waived objection within seven days.
Finally, defendant was entitled to reasonable attorney’s fees and costs in connection with both motions for sanctions, the deposition that was canceled, and the motion to strike the complaint. Unless the parties agreed upon the amount of the monetary sanctions, the defendant would submit a fee application to the court.
The moral of the story couldn’t be more simple, or obvious: Discovery deadlines are taken seriously in federal court!
