Court Awards Plaintiff Attorneys’ Fees and Expenses Incurred As A Result Of Defendant’s Improper Cancellation of A Deposition.

In a March 18, 2014 Opinion and Order, Judge Gabriel W. Gorenstein granted plaintiffs John Wiley & Sons, Inc., Cengage Learning, Inc., and Pearson Education, Inc.’s motion seeking an order requiring defendants Book Dog Books, LLC and Philip Smyres to pay the expenses plaintiffs incurred when Smyres’s counsel cancelled the second day of his deposition the night before it was scheduled to occur in the plaintiffs’ copyright infringement action.

The Court had previously found that defendants had failed to present an adequate excuse for why they did not appear at their deposition, and gave plaintiffs leave to file the instant application for expenses. In opposition to plaintiffs’ request, defendants argued “[t]he discovery disputes addressed in the Feb. 20 and Feb. 24 letters would have occurred even if Mr. Smyres had submitted to deposition [and thus] Mr. Smyres should not be assessed for the cost of litigation events that would have happened in any event.”

Court Granted, In Part, And Denied In Part, Third Party Defendants’ Motion To Preclude Defendant From Offering Certain Documents and Witnesses.

In a March 7, 2014 Opinion and Order, Magistrate Judge Henry Pitman granted, in part, and denied in part, third party defendant Bambams, LLC’s motion to preclude defendant Sherwood Group, Inc. from offering certain documents and witnesses. Plaintiff Max Impact, LLC commenced this lawsuit against defendant Sherwood Group, Inc. asserting patent and copyright infringement claims in connection with Sherwood's sale of a banner product called "Expand-A-Banner". Sherwood filed its answer and asserted counterclaims against third party defendant BamBams, LLC alleging that the counterclaim-defendants, including BamBams, made false statements in advertisements regarding Expand-A-Banner and had tortiously interfered with plaintiff's business relationships.

BamBams moved to preclude Sherwood from offering: (1) Bank of America deposit slips and cancelled checks for 2006; (2) the balance sheet and P&L statements Sherwood obtained from its accountant; (3) the QuickBooks summaries and reports as evidence of gross profits and/or costs of banners sold and (4) testimony from either Sherwood's accountant or bookkeeper. BamBams sought this relief pursuant Federal Rule of Civil Procedure 37(c) and argued that it was appropriate because Sherwood had (1) failed to provide adequate damages computations and documentary support for its damages claims as required by Fed.R.Civ.P. 26(a)(1)(A)(iii), (2) failed to comply with the fact discovery deadline set forth in my Order, dated July 25, 2013 and (3) failed to disclose its accountant and bookkeeper as potential witnesses in its initial disclosures.