Barbera v. Grailed, Inc

Background

Robert Barbera alleged that Grailed, LLC infringed his copyright in a photograph of Jonah Hill. He alleged that he first discovered the alleged infringement on April 6, 2022, and filed this action on May 8, 2024. The opinion addressed Grailed’s third and fourth motions for sanctions, not the underlying copyright-infringement claim.

The court had previously ordered Barbera to provide discovery, including initial disclosures, interrogatory answers, and documents. The court had also previously imposed sanctions for failures to meet discovery obligations, including requiring a deposition, further discovery responses, and payment of certain fees and costs. After those orders, Barbera made several delayed and supplemental productions. Grailed identified additional missing documents, deficient initial disclosures, and continued withholding of documents. At his deposition, Barbera also testified that he had deleted notes, emails, text messages, and other records, including records related to the alleged infringement and communications with his attorneys.

Third Motion for Sanctions

Grailed sought dispositive sanctions based on discovery violations, contempt sanctions for violating the court’s discovery orders, and sanctions against Barbera and his counsel for alleged misrepresentations to the court. Grailed also sought sanctions based on alleged spoliation—the loss or destruction of evidence that should have been preserved—and other failures to comply with discovery orders.

The court found that Barbera had a duty to preserve electronic records concerning his discovery of the alleged infringement and his initial communications with counsel because litigation was reasonably foreseeable. The court found that he intentionally deleted relevant electronic records and that the records could not be restored or replaced through additional discovery. It also found that the lost information prejudiced Grailed because the records could have helped determine whether Barbera’s copyright claim was filed too late.

The court nevertheless found insufficient evidence that Barbera deleted the records with the specific intent to deprive Grailed of their use in the litigation. Under Federal Rule of Civil Procedure 37(e), the court therefore declined to impose the most severe spoliation sanctions, including dismissal or an instruction allowing the jury to presume that the lost information was unfavorable to Barbera. The court also declined to use its inherent authority to impose those sanctions.

Instead, the court imposed measures it found necessary to address the prejudice. Barbera was precluded from testifying, either in court or through a declaration or affidavit responding to a summary-judgment motion, about the date on which he initially discovered the alleged infringement. Grailed was permitted to present evidence and argument to the jury concerning the lost documents and could seek appropriate instructions to assist the jury in evaluating that evidence, but the court would not give an adverse-inference instruction.

The court separately found that Barbera’s document productions were late and incomplete, that he continued to withhold documents based on objections the court had already ruled were waived, and that his initial disclosures did not adequately state his damages computation. The court found his repeated noncompliance willful, enduring, and prejudicial to Grailed. It declined to dismiss the case because monetary sanctions and other lesser measures remained available to address the misconduct. The court ordered Barbera’s counsel to pay Grailed’s reasonable attorneys’ fees and costs for the third sanctions motion and for reviewing and corresponding about Barbera’s deficient productions. Those amounts could not duplicate fees and costs awarded in the court’s March 5, 2025 order. The court also directed Barbera to provide the withheld settlement agreements with Andy Cohen, Grandari, and Milk Snob unless those third parties objected to the requests.

Contempt Request

The court found that its November 20, 2024 and March 5, 2025 orders were clear, that Barbera failed to comply with them, and that he did not establish that earlier compliance was impossible. The court nevertheless declined to award contempt sanctions because the fees Grailed sought for enforcing the orders were already covered by the discovery sanctions and awarding them again would be duplicative.

Rule 11 Request

Grailed’s fourth motion sought attorneys’ fees and costs under Rule 11 based on the allegation that Barbera discovered the alleged infringement on April 6, 2022. The court declined to impose Rule 11 sanctions. Although Barbera had not produced evidence establishing the exact discovery date, the court found that the claim was not so plainly unsupported that it had no chance of success. A screenshot dated April 14, 2022 supported the general timeframe alleged, and Rule 11 required a reasonable inquiry, not the best possible evidence.

Disposition

The court stated that Grailed’s third motion for sanctions was granted in part and denied in part. The court barred Barbera from testifying about the date of his initial discovery, allowed Grailed to present evidence and argument about the lost documents, required further discovery, and ordered Barbera’s counsel to pay the specified reasonable fees and costs. It declined to dismiss the action, impose an adverse inference, or award contempt sanctions, and declined to impose Rule 11 sanctions based on the alleged lack of support for the discovery date.