Wilson v. D'Apostrophe Design Inc.

Background

D’Apostrophe Design Inc. submitted a letter requesting a pre-motion discovery conference under the court’s practices and Local Civil Rule 37.2. The defendant said it intended to seek an order compelling discovery, dismissal, and/or sanctions based on what it described as Wilson’s failure to conduct discovery in good faith.

The defendant stated that it served document requests on April 10, 2020, and that Wilson responded on May 11 with incomplete and argumentative objections and no documents. After additional correspondence and a prior joint status letter that the court had so-ordered, Wilson produced 57 pages on June 3.

The requests primarily sought documents concerning registration of the photographs with the United States Copyright Office, including copyright applications and deposit files. They also sought agreements with and proof of payment by third parties concerning use of the photographs. The defendant said these materials were relevant to whether the photographs had been registered before the complaint was filed and to its position that at least one third party had paid Wilson in full for D’Apostrophe’s use of the photographs.

Discovery dispute

The defendant said it identified deficiencies in Wilson’s responses and production on June 30 and asked him to correct them within seven days. During a July 7 telephone conference, Wilson’s attorney, Richard Liebowitz, allegedly refused to produce the requested deposit files.

The letter relied on prior decisions concerning copyright-registration records and alleged discovery misconduct by Liebowitz. It argued that the deposit files would show whether the photographs at issue were included in the registration identified in the complaint. The letter requested a conference so D’Apostrophe could further explain the basis for its anticipated motion.

Court action

Judge Katharine H. Parker scheduled a telephone pre-motion conference for July 23, 2020, at 2:00 p.m. The document did not decide whether Wilson had to produce the deposit files, whether the case should be dismissed, or whether sanctions should be imposed. It therefore resolved only the scheduling of the requested conference, not the underlying copyright or discovery dispute.