Briese Lichttechnik Verttriebs GmbH v. Langton et al

Filing 193

MEMORANDUM & ORDER re: 180 MOTION To Find Documents Intentionally Withheld by Defendants Deemed Admitted Pursuant to Rule 37 filed by Hans-Werner Briese, Briese Lichttechnik Verttriebs GmbH. Plaintiffs' motion is granted to the extent that we have indicated. (Signed by Magistrate Judge Michael H. Dolinger on 10/6/2011) Copies Mailed By Chambers. (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----x
BRIESE LICHTTECHNIK VERTRIEBS
GmbH and HANS-WERNER BRIESE,
MEMORANDUM & ORDER

Plaintiffs,

o9

against-

Ci v . 97 9 0 ( LTS) (MHD)

BRENT LANGTON, B2PRO, KEY
LIGHTING, INC.
SERGIO
ORTIZ,
Defendants.

------ x

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE;

In March of this year, in
2011

order

imposing

sanctions

discovery derelictions,
int

wake of this court's January 10,
on

defendants

plaintiffs'

for

a

variety

counsel obtained a

of

trove

corporate documents from an independent contractor who had

worked for

fendant B2Pro until August 2010. Assert

documents had been improperly wi

ld by defendants and that they

contain significant evidence
have moved

that these

defendants'

profits,

an order deeming these documents to

iffs
admissible,

presumably at trial or on a summary judgment motion.

Defendants oppose
are

part

non

aintiffs' motion, although their arguments

sequiturs

and

1

are

partly

based

on

a

s

mischaracteriz

ion of a prior court order. They argue principally

that they produced these documents or their functional equivalent
in discovery (Defs.' Mem. of Law at 2-7)
previously

precluded

purportedly as

a

compl

the

about

documents.
general

plaintiffs

discovery
means

(Langton Decl.

complaints

of

from

sanction.
by

~~

which
2-3,

discovery

complaints that we have previously

and that the court has
using
at

(Id.

such

documents,

7 - 8).

They also

plaintiffs

6-7).

obtained

nally,

shortcomings

they
by

these
terate

pla

iffs,

ected. (Defs.' Mem. of Law at

7 8).

The pertinent facts may be briefly stated. The source of the
documents, a man named Ken Robinson, worked as Manager of Equipment
for defendant B2Pro from February until August 2010, and as part of
his job had routine access to the B2Pro computer system.
Decl.

~~

3-4). In July and August 2010 he downloaded onto

laptop a large quantity
lists,

(Robinson

including

umbrellas;

prices

product orders

B2Pro documents.
for
for

the
a

alleged
portion

sown

These reflect price
infringing
2010 i

reflector

summaries of

revenues for various B2Pro product groups for 2007 to 2010; and
revenues by product category for 2009 and part of 2010.
& Ex. A).

~~

7-9

Soon thereafter he was subpoenaed by plaintiffs for a

deposition (id.

~

5), and on August 19, 2010 he gave testimony that
2

severely undercut

the

credibility of

defendant

Notably, he testified that Mr. Langton had

Brent

Langton.

iberately withheld

from inspection by plaintiffs the umbrella reflectors that are the
subject of this lawsuit and that Mr. Langton had thereafter sought
to persuade him to defy the deposition subpoena served on him by
plaintiffs or to testify falsely at his deposition.
Lichttechnik Vertriebs

GmbH

v.

Langton,

2011

WL

See

280815,

*1 2

(S.D.N.Y. Jan. 10, 2011). According to Mr. Robinson, Mr. Langton
fired him soon after his deposition

(Robinson Decl.

~

6),1

and

aintiffs report that at some unspecified point thereafter he was
hired by plaintiff Briese.

(PIs.' Reply Mem.

Law at 10 n.5). In

early March 2011, he provided to plaintiffs' counsel copies of the
documents that he had downloaded from the B2Pro computer system
(Robinson Decl.

~~

11-13),

leading

to

the

pending

request

by

plaintiffs.

Plaintiffs seek relief under Rule 37 (b) (2)
Mem.

of Law at 6),

defendants
plaintiffs'

(see pIs.' Reply

on the premise that discovery misconduct by

as previously found by

court -- so prejudiced

ability to prove their case at trial that the court

'Langton disputes this assertion, claiming that by September
2010 there was insufficient business to justify his continued
services with the company. (Langton Decl. ~ 8).
3

should deem the new documents "admitted",
trial because they will assist

that

aintiffs

lS,

admissible at

in demonstrating the

magnitude of defendants' infringing profits and also provide grist
for challenging defendants' credibility.

(PIs.' Mem. of Law at 2,

5 6i PIs.' Reply Mem. of Law at 2 7). In this respect, plaintiffs
argue that the sanctions already imposed by the court on defendants
including

barring

defendants

from

using

any

documents

not

produced to plaintiffs during discovery and providing the trier of
fact with findings about the deliberate withholding of documents by
the

defendants

are

attendant on defendants'

insufficient

to

remedy

the

judice

rtinent financial

failure to provide

documents, and that the use of the Robinson-supplied documents will
leviate that injury.

We view the issue in somewhat simpler terms. Putting to one
side

whether

the previously imposed sanctions

remedy whatever
demonstrated

will

suffice

to

judice plaintiffs may have suffered from the

withholding

of

documents

and

false

testimony

by

defendants, we conclude that the initial question is whether the
proffered documents would ordinarily be admissible at trial
hence on summary judgment).

(and

That question turns principally on

whether the party proffering the documents can satisfy the twin
requirements

of

authentication

and
4

relevance.

See

Rodriguez

l

364 F.3d 4241

requirements
======1

of

Fed.

436

R.

(2d Cir.

Evid.

401

2004)

and

243 F.3d 635 1 658 (2d Cir. 2001)

(applying relevancy

402);

(discussing requirement

authenticity as condition precedent to admissibility) .

aintiffs

rest their authentication showing on a declaration by Mr. Robinson
who

recounts

his

downloading

of

the

documents

from

the

l

B2Pro

computer system and his preservation of the documents free from
tampering until he delivered them to counsel. (Robinson Decl.
13) . Regardless

~~ 7­

whether that showing by itself would suffice for

admissibility purposes (assuming Mr. Robinson so testified at t
or

on

summary

judgment)

I

defendants

l

responding

confirm the authenticity of these documents.
Langton and defendants

I

papers

Indeed

l

1

amply

through Mr.

they observe that the documents

counsell

came from the B2Pro computer system

l

and indeed premise much of

their argument for exclusion on the contention that Mr. Robinson
misbehaved in appropriating the company s documents. (Langton Decl .
I

~~

2-3 /

67;

Defs.1

Mem.

of Law at

1/5-7).

plainly suffice to authenticate the documents.
R.

Evid.

901 (a) ("The

requirement

of

generally Fed.

authentication

satisfied by evidence sufficient to support a
matter

These admissions

is

finding that the

question is what its proponent claims.")2; United States

2 Effective December 11 2011 1 the quoted wording will change
slightlYI to state that "the proponent must produce evidence

5

v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999).

As for relevance, at the very least the documents reflecting
price

lists

or

revenue

derived

from

the

lease

of

reflector

umbrellas are pertinent to the issues in the case. In addition, to
the extent that defendant Langton previously represented to the
court that his company's finances were in a purportedly parlous
state

(Mullally

Reply

Decl.

Ex.

5),

documents

indicating

the

substantial scale of the company's revenue stream, which was in the
millions of dollars, is potentially usable to impeach Mr. Langton's
credibility.

In seeking to resist plaintiffs' application, defendants argue
that they provided equivalent documentation in discovery_ It does
appear that

some

the documents that

defendants produced to

plaintiffs and that they used in deposition questioning reflected
income from the leasing of some B2Pro equipment

some period of

time, but that does not demonstrate that defendants complied with
the

1 extent

the

they had done so -- which

discovery obligations. Moreover, even if
ainly they have not, see Briese, 2011

sufficient to support a finding that the item is what the
proponent claims it is." This amendment would not alter our
analysis.

6

II

such a finding would not preclude the admission

WL 280815 at *9

aintiffs by

of relevant corporate documents belatedly provided to
a non-party.

As

fendants'

for

argument

that

the

court

previously

precluded plaintiff from using such documents, it is so wide
mark as to suggest

unfortunate

the

,not uncharacteristically -­

that defendants'

counsel is engaging in bad-faith argumentation.

The January 24,

2011 memorandum and order to which defendants'

counsel refers did not preclude plaintiffs from using the type of
documents

at

issue

here

that

is,

documents

pertaining

to

defendants' earnings. The pertinent passage addressed a complaint
by defendants that plaintiffs had failed to produce

1 documents

reflecting or relating to plaintiffs' profits from their reflector
umbrella, and since plaintiffs had apparently not produced some of
their cost documents (apparently partly because they contemplated
seeking
profits),

the

infringers'

we held that

profits

rather

they would be

than

ir

limited at

t

own
al

lost

to the

profits-related documents that they had produced to defendants.
~~~~~~~~~~~~~~~=-~~~~~~~~,

(S.D.N.Y.

2011).

This

of

course

did not

272 F.R.D. 369, 374

speak

to

evidence

of

defendants' profits, which is the subject to which the currently
disputed documents relate. Indeed, it would have made no sense for
7

Iii

the court to limit plaintiffs' use
we had found that defendants had

defendants' documents since
iled to produce pertinent and

requested documents.}

In

sum,

authentic

we

that

the

documents

in

question

are

that is, they came from the document retention system

of defendants
mentioned,

conclude

and that they appear, in the respects that we have

to be

evant. We see no need at t

s time to parse

relevance

any more specific terms than we have done here, since

the part

will have ample opportunity on summary judgment or at

t

al to argue the relevance of specif

Finally,
should not

documents.

4

though defendants seem to argue that the documents
allowed into evidence because they were obtained by

underhanded means through Mr.

Robinson,

this argument is a non­

starter. Defendants offer no legal authority for t

legal premise

At one point defendants argue in general terms that the
currently disputed documents, or some unspecified portion of
them, were never requested by plaintiffs. (Defs.' Mem. of Law at
5 6). This too is plainly incorrect.
3

4We also note that plaintiffs have not sought leave to re
open discovery in order to question defendants' principals about
these documents, and are presumably prepared to explain the
details of those documents, and to of
whatever basis of
relevance may be required, if defendants choose to challenge
their prof
on summary judgment or at trial.
8

underlies their argument, see,

~,

Go SMiLE, Inc. v. Levine,

769 F. Supp.2d 630, 649 (S.D.N.Y. 2011) (refusing to

clude use of

documents allegedly stolen by former employees of the
United States v. Knoll,
(Fourth

Amendment
ly

does

purloined

16 F.3d 1313, 1319 20

not

bar

Government

by non-government

event, since defendants fai

aintiff)

(2d

use

actors),

1994)

r.

of

documents

and

in

any

to produce the documents at issue

in contravention of their I

obligations -- they can scarcely

rely on their own misconduct as a means of precluding

use of

documents to which plaintiffs were entitled to have access.

CONCLUSION

For
extent

i

reasons stated, pIa

iffs' motion is granted to

we have indicated.

Dated: New York, New York
Oc
r 6, 2011

\.h-.. . .

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE

9

Copies of the forego
to:

Memorandum and Order have been mail

M. Veronica Mullally, Esq.
Hogan Lovells US LLP
875 Third Avenue
New York, New York 10022
Edward Kelly, Esq.
oloff & Kelly LLP
Chrysler Building
405 Lexington Avenue
37 th
oor
New York, New York 10174
Edward C. Schewe, Esq.
Schewe & Assocs.
1600 Rosencrans Avenue
4th Floor
Manhattan
, Calif

90266

10

today