Victoria Ryan v. Editions Limited West, Inc. et al

Filing 217

ORDER RE PLAINTIFF VICTORIA RYAN'S MOTION IN LIMINE; FURTHER SCHEDULING ORDER by Judge Paul S. Grewal denying 204 Motion in Limine (psglc1, COURT STAFF) (Filed on 12/27/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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VICTORIA RYAN,

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Plaintiff,
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v.
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EDITIONS LIMITED WEST, INC., ET )
AL.,
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Defendants.
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__________________________________ )

Case No.: C-06-04812 PSG
ORDER RE PLAINTIFF VICTORIA
RYAN’S MOTION IN LIMINE;
FURTHER SCHEDULING ORDER
(Re: Docket Nos. 204, 213)

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Plaintiff Victoria Ryan (“Ryan”) moves in limine for sanctions against Defendant
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Editions Limited West, Inc (“ELW”). ELW opposes the motion. On December 16, 2011, the
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parties appeared for hearing on these and other matters at the final pretrial conference. Having
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reviewed the papers and considered the arguments of counsel,
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IT IS HEREBY ORDERED that Ryan's motion in limine for sanctions is DENIED.
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In this copyright infringement suit, Ryan claims damages totaling $1.72 as a result of one
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unauthorized sale of a canvas transfer of her work. Ryan argues that had ELW implemented a
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litigation hold at the commencement of the case or even beforehand, as it was obligated to do,
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additional discovery might have shown that she had incurred still more damages. In support of
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her motion in limine, Ryan points to some specific examples: (1) ELW admitted belatedly that it
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Case No. C 06-4812 PSG
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ORDER RE MOTION IN LIMINE; FURTHER SCHEDULING ORDER

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had failed to produce the mural agreement with Environmental Graphics; (2) during the

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depositions of ArtSelect representatives, some emails were produced belatedly and others were

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never found, including an original email from ELW to Mr. Reeder authorizing the canvas

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transfer of artists’ works, including those of Ryan; (3) during the depositions of ELW

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employees, they admitted that they had not been instructed to retain documents; and (4) ELW

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destroyed purchase orders after 90 days and emails were routinely deleted.

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ELW responds that these issues have been addressed previously in motion practice before
Judge Trumbull (and later affirmed by the Ninth Circuit) rendering the issue moot.

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A court may sanction a party who has despoiled evidence based on its "inherent power"

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to respond to abusive litigation practices.1 Inherent powers, however, must be exercised with

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restraint and discretion,2 and in view of the lack of prejudice established by the guilty party.

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Prejudice is determined by looking at whether the spoliating party's actions impaired the

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non-spoliating party's ability to go to trial, threatened to interfere with the rightful decision of the

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case, or forced the non-spoliating party to rely on incomplete and spotty evidence.3 A party's

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destruction of evidence need not be in "bad faith" to warrant the imposition of evidentiary

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sanctions.4 Motive or degree of fault in destroying the evidence, however, should be considered

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in choosing the appropriate sanction.5

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Ryan may be correct that ELW was dilatory in implementing a litigation hold and that
not all responsive documents were produced to her in a timely fashion. Ryan also may be
correct that the court’s previous discovery order did not resolve the relevancy of all the
documents now at issue. But the relevancy – or rather, lack thereof – of many of those

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Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1337-38 (9th Cir. 1985).

See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980)
(citations omitted).
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See Leon v. IDX SystemsCorp., 464 F.3d 951, 959 (9th Cir. 2006).

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Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).

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Advantacare Health Partners, LP v. Access IV, Case No. 03-4496 JF, 2004 WL 1837997, at
*4 (N.D. Cal. 2004).
Case No. C 06-4812 PSG
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ORDER RE MOTION IN LIMINE; FURTHER SCHEDULING ORDER

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documents was resolved previously and that resolution was affirmed on appeal. As for the

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remaining documents, other than mere speculation that there might be additional documents

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evidencing more damages, there is no indication of prejudice whatsoever. Ryan states only that

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“it is clearly possible that the emails and purchase orders destroyed as a result of Defendants’

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spoliation would have produced evidence favorable to Ryan.” None of the above examples,

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however, suggests that this is so. Though ELW did not produce all responsive documents, most

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were produced in some form, either by ELW or other third parties. For example, Ryan’s

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complaint that the original email from Mr. Reeder was never produced was cured by an email

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chain that was later produced. The ELW agreement with Environmental Graphics, too, was later

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produced. As for emails that ELW employees did not retain and that were routinely deleted,

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Ryan merely speculates that they might have been favorable towards her. Though witnesses

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testified at deposition that they fielded frequent inquiries from customers about canvas transfers,

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their testimony does not indicate that these inquiries necessarily related to Ryan. Even the

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substance of purchase orders was captured in other documents later produced by ArtSelect.

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Ryan therefore has not shown that her ability to go to trial has been impaired, that spoliation has

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interfered with the rightful decision of the case, or that she has been forced to rely on incomplete

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and spotty evidence. Ryan’s motion in limine therefore is denied.

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IT IS FURTHER ORDERED that the trial is limited to the specific issues set forth by the
Ninth Circuit for remand: (1) whether ELW is liable for contributory and vicarious copyright
infringement; (2) if so, whether Ryan should obtain a permanent injunction; and (3) whether
Ryan is a prevailing party under the broad language of the contract.

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IT IS FURTHER ORDERED that no later than December 30, 2011, the parties shall file

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a waiver of jury in light of their suggestion at the final pretrial conference that a jury trial was no

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longer desired.

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IT IS FURTHER ORDERED that ELW may not offer as evidence Ryan’s deposition
transcript. ELW did not lodge Ryan’s deposition transcript ten days prior to the pre-trial

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ORDER RE MOTION IN LIMINE; FURTHER SCHEDULING ORDER

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conference held on December 16, 2011.6 Her deposition transcript may be used for

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impeachment or rebuttal.7

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IT IS FURTHER ORDERED that Ryan’s objections to (1) ELW’s designation of George
Leeson as a witness; and (2) ELW’s Exhibit No. 215 are sustained. Ryan filed objections to Mr.
Leeson as a witness and to ELW’s Exhibit No. 215 on December 14, 2011. To date, ELW has
not opposed or otherwise responded.

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IT IS FURTHER ORDERED that the schedule for trial is as follows:

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Trial shall commence on January 9, 2012;

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No trial shall be held on January 10, 2012 and trial shall resume on January 11,
2012;

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Opening statements and closing arguments are each limited to 30 minutes per
party;

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A total of 10 hours of trial time is allotted for both parties, with each party having
5 hours of trial time (exclusive of any time allotted for opening statements and
closing arguments);

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Trial will commence each morning at 10AM and conclude at 5PM. There will be
a one-hour lunch break from 12PM-1PM and a 15 minute break at 3PM.

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IT IS SO ORDERED.

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Dated: 12/27/2011

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PAUL S. GREWAL
United States Magistrate Judge

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See Standing Order for Civil Practice in Cases Assigned for All Purposes to Magistrate
Judge Paul S. Grewal (December 2010).
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See id.

Case No. C 06-4812 PSG
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ORDER RE MOTION IN LIMINE; FURTHER SCHEDULING ORDER