Wisser v. Vox Media, Inc.

Background

Bill Wisser, a professional photographer, sued Vox Media, Inc. under Section 501 of the Copyright Act, alleging that Vox published an article featuring one of his photographs without a license, permission, or consent. Vox moved for an order requiring Wisser or his law firm, the Liebowitz Law Firm, PLLC, to post a bond and for sanctions under several Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and the court’s inherent authority.

The court focused on discovery conduct. The law firm served incomplete answers to Vox’s interrogatories, and Richard Liebowitz certified those answers even though the firm had not consulted Wisser about them. The answers included a sworn verification bearing Wisser’s electronic signature, although Wisser had not reviewed the answers and said the signature was not his. The firm later served corrected answers. The firm also did not ask Wisser to search for responsive documents until after the deadline in the court’s scheduling order had passed.

Rulings on the Requested Sanctions

The court held that Liebowitz’s certification violated Federal Rule of Civil Procedure 26(g), which requires a reasonable inquiry into whether discovery responses are complete and correct. However, the court declined to impose sanctions under Rule 26(g) because Vox was not prejudiced by the missing information, much of which was available through documents produced before Wisser’s deposition.

The court also declined to impose sanctions under Rule 37(d). That rule addresses a complete failure to respond to discovery, and Wisser’s side had served responses, even though they were incomplete. The court nevertheless found that the firm violated the scheduling order by producing documents after the deadline and by delaying its request that Wisser search for documents. Those violations warranted sanctions under Rules 16(f) and 37(b), which address violations of scheduling and discovery orders.

The court further found sanctions appropriate under 28 U.S.C. § 1927 and its inherent authority. Section 1927 permits sanctions against an attorney who unreasonably and improperly multiplies the proceedings. The court found that attaching Wisser’s electronic signature to a sworn verification without consulting him, combined with the incomplete discovery responses, the late document search, and the firm’s history of similar conduct, provided clear evidence of bad faith. The court rejected the explanations based on the engagement agreement, alleged implied authority, the firm’s usual practices, lack of prejudice, and workload.

Sanctions and Other Relief

The court ordered Richard Liebowitz and the Liebowitz Law Firm to pay Vox’s reasonable attorneys’ fees caused by the failure to comply with the scheduling order under Rules 16(f) and 37(b). The court also imposed a $5,000 sanction under its inherent authority, required payment to the Clerk of Court by April 10, 2020, and required Liebowitz to provide proof that the firm had changed its policy and practice to comply with Rule 33(b)(5).

Vox was permitted to reopen Wisser’s deposition for up to 90 minutes solely concerning the corrected interrogatory answers. If Vox chose to do so, the firm also had to pay Vox’s reasonable attorneys’ fees and expenses for that deposition time under Section 1927 and the court’s inherent authority. The court ruled that dismissal was not warranted because there was no evidence that Wisser himself, as opposed to his counsel, acted in bad faith.

The court denied Vox’s motion to require Wisser to post a bond, while allowing Vox to renew that request if additional evidence emerged concerning the merits of the underlying claim or Wisser’s financial condition. The court denied Wisser’s request for attorneys’ fees connected with the sanctions motion. In the conclusion, the court stated that Vox’s sanctions motion was granted in part and denied Wisser’s application to strike a docket filing as moot.