Sadowski v. Ziff Davis, LLC

Background

Christopher Sadowski brought a copyright action against Ziff Davis, LLC, alleging that Ziff Davis posted his photograph of a Home Depot store on TechBargains.com without authorization. The photograph had been published in the New York Post and registered with the U.S. Copyright Office. Sadowski’s counsel represented that the photograph had been licensed to the New York Post for $275. Ziff Davis represented that it earned less than $30 in commissions from purchases linked through its website and removed the photograph after receiving notice of the lawsuit.

Ziff Davis made an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. The opinion states that the offer exceeded five times the stated licensing fee, plus an estimate of Sadowski’s costs and attorney’s fees. Sadowski did not accept the offer before it expired. Ziff Davis then moved under Local Civil Rule 54.2 of the Southern District of New York for a $20,000 bond for costs.

Legal Standard and Analysis

Local Civil Rule 54.2 allows the court to require a party to provide a bond or additional security for costs. Courts may consider factors including the party’s ability to pay, the merits of the claims, the scope of discovery, expected legal costs, and compliance with prior court orders. In this case, the court focused on expected legal costs and compliance with court orders.

The court stated that if Sadowski ultimately recovered no more than the rejected Rule 68 offer, Rule 68 could require him to pay Ziff Davis’s post-offer costs. The court explained that those costs could include attorney’s fees because the Copyright Act permits attorney’s fees as part of recoverable costs. It also noted that two deposition transcripts alone were expected to cost $1,500 and that Sadowski had made extensive discovery requests, which could increase Ziff Davis’s legal fees.

The court also found that the compliance factor supported a bond. Sadowski’s counsel acknowledged filing more than 2,500 cases in four years and more than 700 cases in the Southern District of New York since 2016. The opinion states that counsel had repeatedly been sanctioned and that Sadowski had already failed to file proof of service as required by Federal Rule of Civil Procedure 4(l) in this action.

The court rejected Sadowski’s argument that the First Amendment right to petition barred a bond unless the claim was conclusively shown to be frivolous. It also rejected his argument that requiring a bond from an individual copyright plaintiff but not an artificial entity violated the Equal Protection Clause under a “class of one” theory. The court stated that Sadowski had not shown the required elements of such a claim and that any equal-protection claim about actions by federal district courts could not be asserted against Ziff Davis, a private party defending the copyright case.

Disposition

The court granted Ziff Davis’s motion for a bond and ordered Sadowski to post a $20,000 bond with the Clerk of Court by June 26, 2020. The court stated that Ziff Davis could seek an additional bond if the course of the litigation required one. This order addressed security for litigation costs; it did not decide whether Ziff Davis infringed Sadowski’s copyright.