Schoenberg v. Shapolsky Publishers

140 F.R.D. 282, 1991 U.S. Dist. LEXIS 17865, 1991 WL 262564
CourtDistrict Court, S.D. New York
DecidedDecember 10, 1991
DocketNo. 91 Civ. 0208 (DNE)
StatusPublished
Cited by3 cases

This text of 140 F.R.D. 282 (Schoenberg v. Shapolsky Publishers) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schoenberg v. Shapolsky Publishers, 140 F.R.D. 282, 1991 U.S. Dist. LEXIS 17865, 1991 WL 262564 (S.D.N.Y. 1991).

Opinion

OPINION & ORDER

EDELSTEIN, District Judge:

After defendants failed to comply with this Court’s order compelling discovery, plaintiff brought an order to show cause why this Court should not hold defendants and their attorney, Samuel A. Abady, in contempt and impose sanctions on them. For the reasons stated below, this Court finds that Mr. Abady is in contempt of this Court’s order and that sanctions are appropriate. In addition, this Court will hold a further hearing to determine whether defendants are at all responsible for plaintiff’s inability to obtain discovery. If this Court finds that defendants are culpable, this Court will allocate its sanctions award between defendants and Mr. Abady.

BACKGROUND

Harris 0. Schoenberg (“Schoenberg or plaintiff”) is the author of “A Mandate for Terror: The United Nations and the PLO.” Plaintiff entered into an agreement with defendant Steimatzky Publishing of North America, Inc., (“Steimatzky”) under which Steimatzky obtained the exclusive right to publish plaintiff’s manuscript. Defendants Shapolsky Publishers (“Shapolsky”) and its President, Ian Shapolsky, allegedly obtained the right to publish the manuscript from Steimatzky. Plaintiff alleges that defendants published the manuscript without authorization, and accordingly, plaintiff brought this action for copyright infringement, breach of contract and inducing breach of contract.

A. First Document Request and Failure to Provide Discovery

Plaintiff filed his complaint on January 1, 1991 and effected personal service on defendants on January 18, 1991. Plaintiff served defendants with his first document production request and first set of interrogatories on February 8, 1991. On March 13, defendants responded to the first set of interrogatories. Also on March 13, defendants’ counsel, Samuel A. Abady, sent plaintiff a letter in which he represented that defendants were gathering the requested documents and promised prompt delivery. Mr. Abady’s letter made no objection to any of the requests for documents nor did he indicate that any documents were not available.

After receiving this correspondence, plaintiff’s counsel, Bernard Malina, repeatedly urged Mr. Abady, without success, to comply with plaintiff’s document production request. Mr. Malina sent Mr. Abady three letters requesting document production between March 13 and March 28. The March 13 letter requested that [284]*284defendants comply with the discovery request before a pre-motion conference before this Court that was scheduled for March 28 so that plaintiff could determine what motions to file. After not receiving the documents or further notice from Mr. Abady, Mr. Malina sent Mr. Abady another letter, dated March 25, in which he reiterated his client’s need for the documents before the March 28 conference and in which he stated his intention to inform this Court of defendants’ non-compliance.

Finally, immediately after the March 28 conference, Mr. Malina sent Mr. Abady a letter, dated March 28, in which he stated that

[y]ou declined to give me a [production] date on the grounds that your client was out of town and was not expected to return until next Thursday. Moreover, you indicated that your client was a busy man and that you would take this matter up with him when you could reach him, but that until that time you could not give me any such date. In view of our unanswered letters to you of March 18th and March 25th, please be advised that we will not accept the above stonewalling and we therefore intend to seek appropriate relief from the Court.

As with the other letters, Mr. Abady failed to respond to this letter as well. In addition, at the March 28 conference, Mr. Malina had orally demanded that defendants fulfill Mr. Abady’s March 13 pledge to supply the requested documents promptly. Mr. Malina’s secretary also placed at least five telephone calls to Mr. Abady between April 2 and April 12 in a further attempt to secure compliance; despite leaving Mr. Malina’s name and number with Mr. Abady’s office, Mr. Abady did not return these calls. See Affidavit of Shirley Weintraub.

B. Motion to Compel Discovery and June 19 Order

Finally, by letter dated April 26, 1991, Mr. Malina requested this Court’s permission to make a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37. Mr. Malina, in his letter to the Court, stated that he had “advised Mr. Abady that the Court insists on a telephone conference between counsel and [the Court] in order to address this problem. However, defendants’ counsel has failed to indicate his availability for such a conference. In view of the proven futility of plaintiff’s efforts to resolve this problem among counsel, plaintiff respectfully requests the intervention of the Court under Rule 37.”

This Court, after hearing oral argument in this matter on June 5, 1991, indicated that it would grant plaintiff’s motion to compel discovery. By order dated June 19, 1991, this Court found that “the failure of defendants to comply with discovery is without justification” and accordingly, it directed that “on or before June 26, 1991, defendants shall, without any objection, produce all the documents requested in Plaintiff’s First Request for Production of Documents at the offices of plaintiff’s counsel.”

C. Failure to Produce Documents and Writ of Mandamus

Defendants did not produce, and indeed refused to produce, any documents. In addition, defendants did not seek a stay of this Court’s June 19 discovery order. Instead, Mr. Abady informed this Court by letter dated June 20 that he would seek a writ of mandamus in the Court of Appeals unless this Court allowed defendants to file a motion to dismiss for lack of subject matter jurisdiction before defendants had to complete discovery. Mr. Abady graciously added that he hoped to avoid this route, “which is uncomfortable for us [and] which would cause the Court unnecessary embarrassment.”

Mr. Abady filed a petition for a writ of mandamus in the Second Circuit on July 12, 1991. The writ requested that the Court of Appeals direct this Court to vacate its June 19, 1991 order and immediately consider and rule on defendant’s motion. In the alternative, the writ requested that the Second Circuit treat this Court’s deferral of defendant’s motion as a denial and asked that the Court of Appeals rule on it. The Second Circuit, after hearing argument on [285]*285August 13, 1991, unanimously denied defendants’ petition from the bench.

D. Plaintiffs Intend to Move for Contempt and Sanctions

Mr. Malina, by letter dated August 13, 1991, reminded Mr. Abady that defendants were in contempt of this Court’s June 19 order. In an apparently unsolicited gesture, however, Mr. Malina’s letter stated that “in view of the just concluded proceedings before the Second Circuit Court of Appeals, we will forebear moving for contempt until August 20, 1991.” Mr. Abady did not respond to this letter and also failed to produce any documents.

As a result, Mr. Malina was compelled to request, by letter dated August 23, a premotion conference before this Court at which Mr. Malina intended to seek permission to move for contempt and sanctions; the conference was scheduled for September 3, 1991 and later rescheduled for September 4 at 4:00 p.m.

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140 F.R.D. 282, 1991 U.S. Dist. LEXIS 17865, 1991 WL 262564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schoenberg-v-shapolsky-publishers-nysd-1991.