Rodriguez v. Whole World Water, LLC

Background

The court stated that plaintiff Erika Rodriguez’s attorney, Richard Liebowitz, had a history of failing to comply with court rules and orders and of being sanctioned. On July 23, 2020, after decisions involving Liebowitz, he told the court that the parties had agreed in principle to settle the case and asked for a 30-day order.

Because of concerns about whether Liebowitz had actually been retained by Rodriguez and authorized to bring and settle the case, the court’s July 24 order required Liebowitz and Rodriguez to submit personal affidavits or declarations addressing when Rodriguez specifically authorized Liebowitz to file the action and settle it. The order also required the full retainer agreement or agreements and other documentary evidence concerning that authority.

The submitted declarations

Liebowitz submitted a declaration stating that Rodriguez signed a retainer agreement with Liebowitz Law Firm, PLLC, on July 15, 2019, authorizing the firm to file copyright-infringement lawsuits on her behalf. He stated that he filed this action on May 16, 2020, notified Rodriguez of the filing that day, and had her authority to settle the case. He attached what he described as a signature page and an email notifying Rodriguez of the filing, but not the full retainer agreement.

The court found that the signature page did not reveal the terms of the agreement and that Liebowitz had not provided the required documentary evidence beyond the signature page and notification email. The court also noted that the purported agreement was signed more than six months before the alleged January 24, 2020 infringement and therefore could not, on the record submitted, serve as evidence that Rodriguez specifically authorized the filing and settlement of this case.

Rodriguez submitted a declaration stating that she personally signed a retainer agreement on July 12, 2019, authorizing the firm to file copyright-infringement lawsuits; that Liebowitz had authority to file this lawsuit as of March 12, 2020; that he notified her of the filing by email on May 16, 2020; and that he had authority to settle the case. Her declaration included the same signature page and notification email, but no evidence supporting her statement about authorization as of March 12, 2020 or authorization to settle later.

The court also noted an inconsistency: Liebowitz relied on the July 15, 2019 retainer agreement as the source of his authority, while Rodriguez’s statement that he had authority as of March 12, 2020 suggested that the July 15 agreement did not itself authorize filing this action. The court stated that the date discrepancy in the declarations was inconsequential for present purposes and noted that the signature page indicated Liebowitz signed on July 12, 2019, while Rodriguez signed on July 15, 2019.

Order

The court reiterated that its July 24 order required the full retainer agreement or agreements and all documentary evidence concerning Liebowitz’s authority to bring and settle the case. It specified that this included emails, letters, notes, and other writings or electronically stored information concerning the retention, the scope of the engagement, changes to that engagement, and the settlement.

Judge Lewis A. Kaplan ordered Liebowitz and Rodriguez to file all of that material no later than August 18, 2020. The order did not decide the underlying copyright claim.