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January 17, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge


This is an action by freelance photographers and authors who contributed to the National Geographic Magazine and who now claim that the use of their contributions in a CD-ROM version called The Complete National Geographic goes beyond the rights they licensed and thus infringes their copyrights. It is a companion to other actions pending in this Court, the opinions in which afford a fuller overview of the controversy, thus eliminating the need to provide additional background here. See Faulkner v. Nat'l Geographic Soc'y, 220 F. Supp.2d 237 (S.D.N.Y. 2002); Ward v. Nat'l Geographic Soc'y, 208 F. Supp.2d 429 (S.D.N.Y. 2002). The matter is before the Court on the motion of defendants ProQuest Company and ProQuest Information and Learning Company ("ProQuest"), pursuant to Fed.R.Civ.P. 37(b)(2), 28 U.S.C. § 1927, and the inherent power of the Court, for sanctions against plaintiffs and their attorney, Surjit P. Soni, Esq., a member of the California Bar, who followed this case here when it was transferred from the Central District of California, for alleged violation of this Court's order of October 28, 2002, which required the plaintiffs to produce certain documents.


The Dispute and the Order to Produce Documents

The history of the discovery controversies in this action is long. As it is not material to the disposition of this motion, the Court will not recount the sad tale save to say that it repeatedly has found a substantial degree of obstructionism, an almost complete lack of cooperation, and a good deal of evasion and what can be described only as pettifoggery.

The current controversy arose out of defendants' efforts to conduct discovery with respect to plaintiffs' motion to certify a class. After much squabbling, ProQuest, by letter dated October 11, 2002, narrowed its remaining document requests — which in its view had not been complied with over a period of months — to three: (1) documents relating to the licensing of each allegedly infringed work, (2) original versions of each allegedly infringed work submitted to National Geographic, and (3) contingency fee agreements between each plaintiff and The Soni Law Firm or any of its agents or representatives. Cirino Decl. Ex. 17. A few days later, Mr. Soni responded that plaintiffs would provide documents relating to licensing of the works at issue and allow inspection of original works if they had them, but — in what appears to be a common form of delay and evasion — asked ProQuest to identify which plaintiffs had such documents, apparently in preference to asking his own clients for the documents. He indicated also that plaintiffs believed that they had produced all of the fee agreements and asked ProQuest to advise him as to which ones ProQuest did not have. Id. Ex. 18.

Mr. Soni's response was unsatisfactory to ProQuest. By letter dated October 17, 2002, ProQuest sought the Court's intervention. Id. Ex. 19. Among other things, it explained — quite reasonably — that it could not be expected to tell which of the plaintiffs had documents relating to the licensing of their works to others, that it certainly was in no position to tell plaintiffs which of them had original versions of their works submitted to National Geographic, and that Mr. Soni's assertion that he had produced all of the requested fee agreements was demonstrably inaccurate.*fn1 Id.

On October 28, 2002, the Court held a hearing on this and other discovery disputes among the parties.*fn2 The following colloquy and order ensued:

"THE COURT: * * * We go to Mr. Cirino's [counsel for ProQuest] happy circumstances, ProQuest's [sic] requests. It seems to me there were the following issues:
"First of all, there were document requests to the plaintiffs, the first being documents pertaining to the licensing of each allegedly infringed work; that is, licensing to others original versions of each [of the] allegedly infringing [sic — infringed] works submitted to the National Geographic and fee agreements with the plaintiffs' firm.
"Now, my understanding was that there was no relevancy or other substantive objection to this. Is that right, Mr. Soni?
"MR. SONI: I don't believe there is objections to any of those three [i.e., the three document requests set forth in Mr. Cirino's October 17, 2002 letter, Cirino Decl. Ex. 19].
"THE COURT: As to those three, the plaintiffs are directed to produce any responsive documents no later than 10 calendar days from today." Tr., Oct. 28, 2002, at 37-38.
The date for compliance thus was November 7, 2002.

Plaintiffs' Response to the Order

By the close of business on November 7, 2002, plaintiffs had not produced any documents pursuant to the order save for copies of two fee agreements that they had produced previously. On November 11, 2002, ProQuest wrote to Mr. Soni, noted the failure to comply with the October 28 order (the "Order"), and requested compliance by the end of the following day. Cirino Decl. Ex. 20.

On November 12, 2002, Peter Marcus, Esq., of Mr. Soni's firm wrote to ProQuest's counsel. While the letter addressed a number of other discovery disputes between the parties, it ignored the Order and ProQuest's demand that plaintiffs comply with it. Instead, it concluded with the following sentence: "If there are any other documents that you believe are still outstanding, please advise so that we can determine whether their production is warranted." Cirino Decl. Ex. 21. This bit of stonewalling caused ProQuest again to request the Court's intervention by letter dated November 13, 2002, which the Court endorsed as follows: "Defendants may move for sanctions." Id. Ex. 22.

On November 15, 2002, Mr. Soni wrote to the Court. He denied ProQuest's accusation that he was ignoring the Court's order. He went on to assert that "[d]efendants appear intent on continuing to keep Plaintiffs in the dark as to what they are seeking" and that he was "aware of no written order" from the October 28 hearing and then suggested lack of recollection regarding any discussion on that occasion of the requested documents. Id. Ex. 23. Later in his letter, however, he specifically addressed the three categories of documents that the Court ordered produced. He professed his belief that he had produced all fee agreements with his firm, although he did not respond to ProQuest's statement that no agreements had been produced for a number of plaintiffs whom ProQuest had identified by name. He claimed that he was doing his best to obtain the licensing documents and original works. Id. at 2. But he made no effort to explain why these documents — which had been requested many months earlier — had not been produced as ordered apart from a conclusory suggestion that some of them "would be 20-30 years ...

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