United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
case is one of several in which plaintiffs, sports
photographers Scott Boehm and David Stluka, allege copyright
infringement and related claims against numerous defendants,
who are mostly sports memorabilia dealers who sell
reproductions of sports photographs. The motion for sanctions
before the court comes in the aftermath of a discovery
dispute. Plaintiffs served a third party subpoena on
nonparties Dan and Ciara Zimprich asking them to produce any
copies of photographs that they received or copied from
defendants Amanda McVeigh or Jesse Winiecki. The Zimpriches
denied having any of these photographs. Plaintiffs doubted
the veracity of the Zimpriches' response and eventually
obtained an order to compel from the court. Six months after
receiving plaintiffs' subpoena, the Zimpriches finally
produced the photographs at issue.
had moved for sanctions against the Zimpriches and attorney
Michael Crooks in their motion to compel. Dkt. 423. The
court stayed their request pending the outcome of subsequent
discovery. Plaintiffs have now renewed their motion and
request that the court require the Zimpriches and Crooks to
jointly pay all attorney fees and costs associated with
plaintiffs' counsel's efforts to obtain these
photographs from the Zimpriches. Dkt. 538. The court will
grant plaintiffs' motion as to the Zimpriches.
allege that the Zimpriches received copies of plaintiffs'
photographs from Amanda McVeigh and Jesse Winiecki, among
other defendants. Plaintiffs issued a third-party subpoena to
the Zimpriches requesting copies of any digital copies of
photographs that the Zimpriches received or copied from
McVeigh or Winiecki. The Zimpriches responded to this
subpoena through Crooks. In their response, the Zimpriches
denied possessing any photographs from McVeigh or Winiecki.
The Zimpriches' response was signed by Crooks “as a
facilitator for the responses.” Dkt. 425-3, at 6.
McVeigh and Winiecki sent a separate subpoena to the
Zimpriches requesting the same photographs. Again, Crooks
signed a response to the McVeigh/Winiecki subpoena denying
possessing any photographs from McVeigh or Winiecki.
told Crooks that they questioned the veracity of the
Zimpriches' subpoena response and urged the Zimpriches to
search more thoroughly for the photographs. The Zimpriches
continued to assert that they did not have any of the
requested photographs. Crooks eventually told plaintiffs that
although he had been facilitating the Zimpriches'
response to this subpoena, he did not represent the
Zimpriches in this matter and instructed plaintiffs to follow
up with the Zimpriches directly.
moved to compel the Zimpriches to comply with the subpoena.
The court granted plaintiffs' motion and stayed
plaintiffs' request for sanctions pending the outcome of
subsequent discovery. Dkt. 426.
later, plaintiffs deposed Ciara Zimprich. For the first time,
Ciara Zimprich claimed to remember that she did possess
digital copies of photographs from McVeigh or Winiecki. When
questioned about her statement to the contrary in response to
the McVeigh/Winiecki subpoena, Ciara Zimprich testified that
Crooks responded to the McVeigh/Winiecki subpoena without
seeking verification of the responses from the Zimpriches.
She did not recall seeing the McVeigh/Winiecki subpoena, nor
did she know how Crooks responded to it.
next month, the Zimpriches gave plaintiffs a thumb drive
containing over 100 photographs downloaded by Winiecki,
including seven photographs to which plaintiffs own
copyright. Plaintiffs then renewed their motion for
“only authority in the Federal Rules of Civil Procedure
for the imposition of sanctions against a nonparty for
failure to comply with a subpoena” is Rule 45(g).
Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d
492, 494 (9th Cir. 1983). The court will interpret
plaintiffs' motion as one brought pursuant to Rule 45(g).
45(g) permits the court to “hold in contempt a person
who, after having been served, fails without adequate excuse
to obey the subpoena or an order related to it.” Rule
45 suggests “at a minimum that contempt motions for
noncompliance with a discovery subpoena should be entertained
with special attention to the procedural and substantive
rights of the nonparty witness.” U.S. S.E.C. v.
Hyatt, 621 F.3d 687, 694 (7th Cir. 2010). To obtain an
award of sanctions, plaintiffs must establish by clear and
convincing evidence that the Zimpriches did not substantially
comply with the unambiguous command of a court order and that
they “failed to make a reasonable and diligent effort
to comply.” Id. at 692 (citing Prima Tek
II, LLC v. Klerk's Plastic Indus., B.V., 525 F.3d
533, 542 (7th Cir. 2008)).
the Zimpriches failed to produce the requested photographs
for six months despite a subpoena and court order compelling
them to do so. The Zimpriches claim to have forgotten about
these photographs until the deposition, despite
plaintiffs' repeated requests for them in this case and
others. The court finds that they did not make a reasonable
and diligent effort to comply with the court orders. The
court will hold the Zimpriches in contempt for their failure
to obey court orders and order them to pay as sanctions all
attorney fees and costs associated with plaintiffs'
counsel's efforts to obtain the photographs at issue,
including: (1) following up on the Zimpriches' subpoena