Barbera v. Grailed, Inc

Background

Robert Barbera alleged that Grailed, LLC infringed his copyright in a photograph of Jonah Hill by publishing it on Grailed’s fashion website without authorization. The order concerned three pending motions: Grailed’s two motions for sanctions under Federal Rules of Civil Procedure 16 and 37, and Barbera’s motion to strike Grailed’s first sanctions motion.

The court had previously ordered discovery deadlines, including deadlines for initial disclosures, document requests, requests for admission, and completion of discovery. The opinion contains inconsistent references to some deadlines, but it states that Barbera’s initial disclosures were overdue and that discovery had closed.

Discovery violations

The court found that Barbera had not properly served his initial disclosures. An email sent to an address associated with defense counsel’s former law firm did not establish effective service, and the court found that Barbera did not correct the problem after receiving information indicating that the address was wrong.

The court also found that Barbera failed to attend a deposition noticed for October 11, 2024. Barbera argued that the deposition date was only a placeholder because Grailed had not confirmed his availability. The court rejected that explanation, finding that Barbera had not shown that he or his counsel was unavailable and had attempted to cancel the deposition through a vendor rather than communicating directly with Grailed’s counsel.

Barbera’s discovery responses were served late and were deficient in several respects. He did not provide verified interrogatory answers, asserted inadequate objections, and failed to answer Grailed’s contention interrogatories. The court had previously ordered supplemental responses and document production. Although the court credited Barbera’s representations about some late or allegedly incomplete production and did not impose sanctions on that basis, it found that he improperly withheld documents based on objections he had waived, including attorney-client privilege and nondisclosure agreements.

Sanctions analysis

Grailed sought dismissal, alternative restrictions on Barbera’s evidence, and reimbursement of expenses. The court found that several factors supported serious sanctions, including the apparent willfulness and duration of the noncompliance, the prejudice to Grailed, and Barbera’s notice of the consequences. The court also considered the availability of less severe sanctions and concluded that dismissal was not warranted at that time. It stated that dismissal could be reconsidered if Barbera’s noncompliance continued.

Rulings

The court granted in part and denied in part Grailed’s motions for sanctions. It ordered Barbera to:

- attend an in-person deposition before the end of March, at his own expense; - pay the costs and expenses of the deposition, including fees for one defense attorney during the deposition, but not preparation time; - serve his initial disclosures and respond to Grailed’s contention interrogatories within seven days; - produce documents responsive to Grailed’s requests, including documents previously withheld based on waived objections; and - pay reasonable attorneys’ fees and costs connected with the sanctions motions, the October 11 deposition, and the motion to strike, subject to a later fee application if the parties could not agree on the amount.

The court also barred Barbera from introducing testimony from any witness other than himself. It denied Grailed’s request for adverse inferences and did not dismiss the case. Barbera’s motion to strike was denied. The court extended the deadline for summary judgment motions from April 7, 2025, to April 21, 2025.