Court Sanctions Defendants in Jimi Hendrix Copyright Infringement Case: eDiscovery Case Law

In Experience Hendrix, L.L.C. et al. v. Pitsicalis et al., No. 17 Civ. 1927 (PAE) (S.D.N.Y. Nov. 28, 2018), New York District Judge Paul A. Engelmayer granted the plaintiffs’ motion for an adverse inference instruction against selected defendants associated with Purple Haze Properties (referred to as the “PHP defendants”) and he directed the PHP defendants to pay the reasonable fees and costs incurred by plaintiffs in bringing the motion.  He denied (at least at this time) the plaintiffs’ request for terminating sanctions and a preliminary injunction against the PHP defendants.

Case Background

In this copyright infringement case related to products that depict Jimi Hendrix and bear his name, the court indicated that it had “been called on repeatedly to issue orders aimed at assuring the PHP defendants’ compliance with elementary discovery obligations.”  The plaintiffs’ latest allegations of PHP defendants’ discovery abuses included the following:

  • The PHP Defendants’ Failure to Produce Forensic Images as Ordered: The PHP defendants initially requested additional time to comply with a July 10 order, explained that they had had difficulty hiring an expert technician who could image the hard drives and also claimed that images with privileged information were mixed with non-privileged images. The Court granted the additional time, but also imposed a fine of $100 per weekday after July 23 that the PHP defendants failed to produce the hard-drive images.  When they did eventually produce some, but not all of the forensic images, they were not “forensic” images, but rather only the data visibly resident on those devices.  The PHP defendants were given another chance and produced images on August 17 (six business days after another extended deadline), but those images didn’t show any previously deleted files.  For various discovery deficiencies, the Court issued an order directing the PHP defendants to “issue to plaintiffs a check in the amount of $12,787.50” by September 21 and followed up with another order to “pay $100 in sanctions to the Registry of the Court for each weekday after the deadline that payment remained outstanding” (to go with $4,600 in previous sanctions issued). 

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