Denenberg v. LED Technologies

Filing 132

ORDER - Defendant's Second Motion for Sanctions, or in the Alternative, Second Motion to Compel (filing 115 ) is granted, in part. Plaintiff shall submit signed, sworn and complete responses to Interrogatory Nos. 3, 5, 7 and Request for Produc tion of Documents Nos. 6, 9, 13 and 16 by October 17, 2011. Failure to do so will result in the imposition of severe sanctions and potential dismissal of this suit. Defendant is entitled to an award of costs and attorney's fees incurred in bring ing its Second Motion for Sanctions, or in the Alternative, Second Motion to Compel (filing 115 ). The parties shall be heard on the matter of costs as follows: a. Defendant shall file an application for attorney's fees, together with an affida vit attesting to the time and expenses incurred in preparing its Second Motion for Sanctions, or in the Alternative, Second Motion to Compel, on or before October 21, 2011. b. Plaintiff shall serve and file a response, if any, to Defendant's app lication for attorney's fees on or before November 4, 2011, at which time the issue of costs will be deemed submitted and a written order entered. Plaintiff shall pay Defendant the amount of $3,763.99 in connection with the court's Ju ne 27, 2011 order (filing 85 ). Said amount shall be paid or offset at the time of final judgment in this case. A status conference will be scheduled, if necessary, following the court's ruling on Defendants Motion to Dismiss (filing 68 ). Plaintiff's Motion for Summary Judgment will continue to be held in abeyance. Ordered by Magistrate Judge F.A. Gossett. (GJG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN M. DENENBERG,
Plaintiff,
V.
LED TECHNOLOGIES, LLC,
Defendant.

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8:09CV3182

ORDER

This matter is before the court on Defendant’s Second Motion for Sanctions, or in the
Alternative, Second Motion to Compel (filing 115). Defendant’s Motion will be granted, in
part.
BACKGROUND
On October 19, 2010, Defendant served Interrogatories and Requests for Production
of Documents on Plaintiff. On December 8, 2010, Defendant filed a motion to compel with
respect to these discovery requests. (Filing 45.) Plaintiff did not respond to the motion and,
on March 29, 2011, the court entered an order granting Defendant’s motion to compel in its
entirety. (Filing 60.) Plaintiff was ordered to serve complete responses to all of the
discovery requests that were the subject of Defendant’s motion to compel on or before April
15, 2011. (Id.)
Defendant filed a motion for sanctions (filing 65) on April 26, 2011, advising the
court that Plaintiff’s supplemental discovery responses were inadequate because they were
incomplete and reasserted objections previously overruled by the court. After reviewing the
matter, the court agreed with Defendant and ordered that Plaintiff would be required to pay
a reasonable portion of the costs Defendant incurred in bringing the motion for sanctions.
(Filing 85.)
On August 1, 2011, Defendant filed the present motion complaining that Plaintiff’s
responses to its Interrogatories and Requests for Production of Documents remain deficient

and requesting that Plaintiff’s complaint be dismissed or, alternatively, that Plaintiff again
be ordered to supplement his discovery responses.
DISCUSSION
1.

Defendant’s Second Motion for Sanctions, or in the Alternative, Second Motion
to Compel
Defendant maintains that Plaintiff has failed to appropriately respond to several

discovery requests. The requests claimed to be lacking a proper response will be discussed
in turn below.
A.

Document Production Request No. 9 and Interrogatory 3(d)

Plaintiff has wholly refused to respond to Document Product Request No. 9 and
Interrogatory 3(d). These requests ask Plaintiff to produce “[a]ll patient releases and/or
consent forms granting [Plaintiff] the right to display photographs on [Plaintiff’s] website”
and to provide the name and contact information for each person who appears in each
copyrighted photograph that was allegedly infringed. (Filing 117.) The court, in an order
dated March 29, 2011, expressly overruled Plaintiff’s objections to these requests, which
were based on overbreadth and an unidentified privilege, and directed Plaintiff to produce
the information and documents sought by these requests. (Filing 60.) Plaintiff has not done
so.
Apparently, Plaintiff believes that since he clarified his objections to these requests
in his amended discovery responses, he has complied with the court’s March 29, 2011 order.
(Filing 124 at CM/ECF pp. 9-11.) Plaintiff is sorely mistaken. The court ordered Plaintiff
to respond to these requests. Plaintiff is not afforded another opportunity to shield this
information from disclosure simply by providing a more-detailed objection. Plaintiff shall
produce all the documents and information responsive to these requests by October 17, 2011.
Failure to do so will result in severe sanctions, potentially including dismissal of this suit.

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B.

Interrogatory 3(c) and 3(e)

Interrogatory 3(c) asks Plaintiff to identify the date that each photograph Plaintiff
claims was infringed by Defendant was taken. Interrogatory 3(e) asks for the date when each
allegedly-infringed photograph first appeared on Plaintiff’s website.

(Filing 117-1.)

Although being previously-ordered to do so, Plaintiff has failed to completely respond to
these requests.
Plaintiff’s amended response to Interrogatory 3(c) remains deficient because Plaintiff
has yet to supply the requested information for each individual photograph. Specifically,
Plaintiff has only identified the dates that the “after” photographs were taken, and has not
provided the dates when the “before” photographs were taken. (Filing 128-1.) Thus,
Plaintiff has only responded to half of this request.
In his response to the present motion, Plaintiff represents that the “before”
photographs were taken six to twelve months prior to the “after” photographs. (Filing 130
at CM/ECF p. 4.) The court notes that this response is insufficient. If Plaintiff does not
know the exact date when each of the “before” photographs were taken, he must say so in
an actual discovery response. In other words, the inclusion of this information in his brief
does not relieve Plaintiff of the obligation to submit a formal, complete, response.
Likewise, Interrogatory 3(e) has not been adequately answered because Plaintiff has
only supplied the “date of first publication,” as opposed to the date each photograph first
appeared on Plaintiff’s website. If each photograph’s date of first publication is the same
date that the photo appeared on Plaintiff’s website, he shall explicitly say so in a formal
discovery response.
C.

Interrogatory No. 5

Interrogatory No. 5 asks Plaintiff to “[i]dentify all such instances when you claim the
Defendant used your copyrighted photograph(s), including: (a) the nature of the
advertisement (internet, print, TV, mailing, etc); (b) the earliest date you became aware said
advertisement existed; (c) identify all persons who are known to have viewed the
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advertisement; and (d) identify where you saw the advertisement displayed (i.e., website
address, location of print advertisement, etc.).” (Filing 117-1.)
Plaintiff argues that Interrogatory No. 5 was not subject to Defendant’s motion to
compel and, therefore, he is under no court-imposed obligation to supplement his response.
Plaintiff is correct that Defendant’s first motion to compel (filing 45) did not specifically
request supplementation of this interrogatory. Still, the court’s order on Defendant’s motion
for sanctions (filing 85) pointed out that Plaintiff’s response to Interrogatory No. 5 was
deficient. The court’s order states that “Plaintiff response fails to state when he became
aware of each alleged use of his copyrighted photographs and, additionally, fails to identify
all persons who are known to have viewed the advertisements.” (Filing 85). Thus, Plaintiff
was aware, following the court’s ruling on Defendant’s initial motion for sanctions, that this
response required supplementation.
In any event, after responding to Defendant’s present motion, Plaintiff did provide an
additional response to this interrogatory. (Filing 128.) However, Plaintiff’s supplemental
response is unclear, provides irrelevant information and does not cure many of the
previously-identified deficiencies. For instance, Plaintiff’s supplemental response states that
Plaintiff saw his copyrighted photographs displayed on the websites of 63 of Defendant’s
distributors, and indicates that the names of these distributors are listed on an attached
exhibit. (Id.) However, the attachment does not name any distributors, but only provides a
list of websites which, in many instances, appear to have no relation to Defendant. (Filing
117-1.)

Moreover, Plaintiff has not identified when he became aware that each

advertisement existed and has not identified specific individuals who he knows viewed each
of the allegedly infringing ads.
In responding to this interrogatory, Plaintiff needs to be more specific and organized.
For instance, and just by way of example, if Plaintiff contends that a distributor (who is
actually affiliated with Defendant) used his photographs in an advertisement on a particular
website, Plaintiff must state (a) the website address; (b) specific persons known by Plaintiff
to have viewed the advertisement on that particular website and (c) when Plaintiff first
became aware that the pictures were being used on that website. Plaintiff cannot lump
information together and expect Defendant to make sense of it.
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D.

Interrogatory No. 7

Interrogatory No 7 asks whether Plaintiff contends that Defendant’s employees visited
Plaintiff’s website prior to receiving Plaintiff’s infringement allegations and, if so, to identify
all facts and documents supporting this contention. (Filing 47.) Plaintiff’s initial response
to this interrogatory was as follows: “Yes. See Defendant’s website, infomercials and agent
solicitations.” (Id. at CM/ECF p. 6-7.) Plaintiff’s most-recent response to this interrogatory
is improved, however, the new response omits any reference to the previously-mentioned
“agent solicitations.” (Filing 128-1 at CM/ECF p. 3.)
By or before October 17, 2011, Plaintiff shall supplement his response to Interrogatory
No. 7 so as to identify and provide information regarding the previously-referenced “agent
solicitations.”

By said date, Plaintiff shall also produce copies of any such “agent

solicitations.”
E.

Request for Production No. 6

The dispute surrounding Request No. 6, which asks Defendant to produce
correspondence with third parties, centers around email correspondence Plaintiff received
from a company called PicScout. PicScout allegedly notified Plaintiff of Defendant’s use
of Plaintiff’s photographs. Initially, Plaintiff informed Defendant and the court that he was
unable to produce this correspondence because he had not retained a copy of it. (Filing 71
at CM/ECF p. 5.) Plaintiff has since located the email correspondence it received from
PicScout and has produced a hard copy of the transmittal email. However, the transmittal
email shows a link to a report containing information regarding the alleged infringement and
this report has not been produced. (Filing 125-1 at CM/ECF p. 5.) Plaintiff shall provide
Defendant with a copy of the report on or before October 17, 2011.
F.

Request for Production No. 13

Request for Production No. 13 asks Plaintiff to produce all documents that evidence
the dates that Plaintiff claims Defendant used Plaintiff’s photographs in its advertising.
Plaintiff’s most recent response to this Request is as follows: “Only Defendant has
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documents to show where they ran the infomercials, distributed printed matter and solicited
dealers. Since Defendant has admitted their use of these items from Mid 2005 until August
2009, every day during this approximately 4 year period would be a date when Defendant
used the copyrighted photographs in its advertising.” (Filing 128-1 at CM/ECF p. 4.)
Plaintiff’s brief in opposition to the present motion indicates that Plaintiff’s response to this
discovery request should be interpreted to mean “none.” (Filing 130 at CM/ECF p. 6.)
However, if this is the case, and no such documents exist, Plaintiff must actually say so.
Plaintiff’s current response sets forth a series of allegations, but does not directly answer the
question asked. Plaintiff’s response is clearly evasive.
G.

Request for Production No. 16

Request No. 16 asks that Plaintiff produce “[a]ll discovery responses prepared by you
or on your behalf in any copyright infringement case relating to any of the three copyrights
referenced in your Complaint in this action.” (Filing 47 at CM/ECF p. 12.) Plaintiff initially
objected to this request on the ground that it was overlybroad and responding would be
unduly burdensome. (Id.) Later, Plaintiff represented to the court that he had conducted a
diligent review of his files, and could not locate any responsive documents. (Filing 71 at
CM/ECF pp. 4-5.) Plaintiff’s amended discovery responses also indicate that Plaintiff has
not located any documents responsive to this request. (Filing 130 at CM/ECF p. 6.)
Defendant remains concerned that Plaintiff has not conducted a diligent search of his
records and, instead, has limited his search to the files and records maintained by his
attorney. (Filing 117-6 p. 4.) The court has no knowledge of the extent of Plaintiff’s search.
However, if Plaintiff has not reviewed his personal files and records in an effort to respond
to this request, he shall do so and provide Defendant with all responsive documents found
by October 17, 2011.
2.

Appropriate Sanctions
The court believes that a form of sanction, short of dismissal, is warranted. Plaintiff

has made some effort at supplementing his responses and has at least expressed a willingness
to resolve the discovery dispute. Nevertheless, despite having the deficiencies to his
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responses explained to him by both defense counsel and the court, he still has been unable
to provide adequate responses. Plaintiff’s responses continue to be incomplete, at times
evasive, and, in some places, disorganized and difficult to decipher. What is particularly
troubling is Plaintiff’s refusal to respond to Document Production Request 9 and
Interrogatory 3(d), despite having been ordered to do so approximately six months ago and
having had sanctions previously imposed. Defendant should not be put to the task of filing
multiple motions in an effort to obtain documents and information that Plaintiff was
previously ordered to supply. Plaintiff will be ordered to pay the reasonable fees Defendant
has incurred in bringing the instant motion (filing 115).
The court notes that Plaintiff spends much time in his briefs complaining about
defense counsel’s failure to confer or cooperate in resolving the discovery disputes. The
court believes, however, that defense counsel has been more than accommodating. The
discovery requests were served almost a year ago, but the requests have yet to be adequately
answered.

Defense counsel has thoroughly explained, in both correspondence with

Plaintiff’s counsel and numerous court briefs, the deficiencies in Plaintiff’s responses.
(Filing 117-9.) Any arguments regarding defense counsel’s refusal to cooperate in resolving
this on-going discovery dispute are simply without merit.
3.

Assessment of Costs in Connection with Defendant’s Initial Motion for Sanctions
The court previously ordered that Plaintiff was to pay a reasonable portion of the costs

Defendant incurred in asserting its initial motion for sanctions and directed defense counsel
to submit an itemization of costs. (Filing 85.) Defense counsel has done so and has attested
to incurring costs and fees in the amount of $3,763.99 in connection with the motion for
sanctions. (Filing 90.) The court concludes that this amount is reasonable and, accordingly,
Plaintiff will be ordered to pay Defendant the sum of $3,763.99.
IT IS ORDERED:
1.

Defendant’s Second Motion for Sanctions, or in the Alternative, Second
Motion to Compel (filing 115) is granted, in part.

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2.

Plaintiff shall submit signed, sworn and complete responses to Interrogatory
Nos. 3, 5, 7 and Request for Production of Documents Nos. 6, 9, 13 and 16 by
October 17, 2011. Failure to do so will result in the imposition of severe
sanctions and potential dismissal of this suit.

3.

Defendant is entitled to an award of costs and attorney’s fees incurred in
bringing its Second Motion for Sanctions, or in the Alternative, Second
Motion to Compel (filing 115). The parties shall be heard on the matter of
costs as follows:
a.

Defendant shall file an application for attorney’s fees, together with an
affidavit attesting to the time and expenses incurred in preparing its
Second Motion for Sanctions, or in the Alternative, Second Motion to
Compel, on or before October 21, 2011.

b.

Plaintiff shall serve and file a response, if any, to Defendant’s
application for attorney’s fees on or before November 4, 2011, at which
time the issue of costs will be deemed submitted and a written order
entered.

4.

Plaintiff shall pay Defendant the amount of $3,763.99 in connection with the
court’s June 27, 2011 order (filing 85). Said amount shall be paid or offset at
the time of final judgment in this case.

5.

A status conference will be scheduled, if necessary, following the court’s
ruling on Defendant’s Motion to Dismiss (filing 68). Plaintiff’s Motion for
Summary Judgment will continue to be held in abeyance.

DATED October 7, 2011.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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NOTICE
A party may object to a magistrate judge's order by filing a Statement of Objections
to Magistrate Judge’s Order. Any objection to this order must be submitted on or before
October 14, 2011. The objecting party must comply with the requirements of NECivR 72.2.

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