Counsel Concerns

Sanctions/Failure to Identify Documents. The U.S. Court of Appeals for the Seventh Circuit upheld a sanction against lawyers for a defamation plaintiff for failure to comply, in good faith, with a court order to identify documents that would be relied on at trial. Muzikowski v. Paramount Pictures Corp., 05-3004. Little League baseball coach Robert Muzikowski had sued over the depiction of a coach in the film 'Hardball,' based on a non-fiction book about inner-city Little League teams with which Muzikowski had been involved. The appeals court found for the defendants on the ground that the depiction could be seen as innocent or defamatory. Also, the district court had adopted a magistrate's sanctions of $50,915 on Muzikowski's counsel ' Schuyler, Roche & Zwirner (SRZ) of Chicago ' for the 'reasonable expenses' to the Paramount defendants of sorting through 14,599 pages of documents from SRZ 'for possible use at trial.'

Assessing the amount of the sanction, the appeals court noted: 'Although SRZ contests reasonableness of the hours expended by Paramount's lawyers reviewing the documents Muzikowski produced, the magistrate judge characterized Paramount's figures as a low-ball estimate, explaining that the figure was 'reasonable especially in light of the fact that its attorneys realistically reviewed thousands of pages of documents far in excess of the 14,599 figure [on which the magistrate based the sanctions].' Nor are we convinced by SRZ's contention that the district court erred by basing its sanctions calculation on the hourly rate Paramount's lawyers charged defendants, rather than requiring Paramount to prove 'that the rates claimed are market rates' ' As far as we can tell, SRZ has never come forth with any evidence to show that the rates charged by Paramount's lawyers are not market rates. The district court therefore did not abuse its discretion by accepting these rates as reasonable.' 

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Sanctions/Misleading Declaration. The U.S. District Court for the Central District of California sanctioned counsel for Beach Boy Mike Love in Love's suit over use of a Beach Boys photo on the cover of a CD retrospective of Beach Boy Brian Wilson's career that was distributed by a UK newspaper. Love v. The Mail on Sunday, CV 05 7798 ABC PJWX. Love had sued for unfair-competition under the federal Lanham Act, but the district court ruled that the Lanham Act didn't apply because it was 'undisputed that the allegedly infringing acts occurred overseas.'

The court then assessed $1000 against Love's counsel. Though not large, the sanction was strongly worded. The court had already 'admonished Plaintiff for his disingenuous claim of California residence after he consistently alleged in previous filings that he is a Nevada resident ' In that same Order, the Court admonished Plaintiff for submitting a sloppily-assembled opposition brief.'

The court noted: 'Plaintiff's counsel submitted a Declaration of Steven Surrey, their only evidence of any CDs reaching the U.S. market. Therein, Surrey claims that he purchased one of the CDs over eBay ' [But] he has apparently been either co-plaintiff with Alfred Rava, or represented by Rava or Flynn & Stillman (both are Plaintiff's counsel in this action), in dozens of gender and age discrimination lawsuits filed against various businesses and non-profit entities ' At a minimum, Plaintiff's counsel should have disclosed his relationship with Surrey ' Not only did Plaintiff's counsel's conduct completely undermine the credibility of the Surrey Declaration and the opposition to the motion, it also unreasonably and vexatiously again lengthened or multiplied both Defendants' and the Court's work.'

Sanctions/Failure to Identify Documents. The U.S. Court of Appeals for the Seventh Circuit upheld a sanction against lawyers for a defamation plaintiff for failure to comply, in good faith, with a court order to identify documents that would be relied on at trial. Muzikowski v. Paramount Pictures Corp., 05-3004. Little League baseball coach Robert Muzikowski had sued over the depiction of a coach in the film 'Hardball,' based on a non-fiction book about inner-city Little League teams with which Muzikowski had been involved. The appeals court found for the defendants on the ground that the depiction could be seen as innocent or defamatory. Also, the district court had adopted a magistrate's sanctions of $50,915 on Muzikowski's counsel ' Schuyler, Roche & Zwirner (SRZ) of Chicago ' for the 'reasonable expenses' to the Paramount defendants of sorting through 14,599 pages of documents from SRZ 'for possible use at trial.'

Assessing the amount of the sanction, the appeals court noted: 'Although SRZ contests reasonableness of the hours expended by Paramount's lawyers reviewing the documents Muzikowski produced, the magistrate judge characterized Paramount's figures as a low-ball estimate, explaining that the figure was 'reasonable especially in light of the fact that its attorneys realistically reviewed thousands of pages of documents far in excess of the 14,599 figure [on which the magistrate based the sanctions].' Nor are we convinced by SRZ's contention that the district court erred by basing its sanctions calculation on the hourly rate Paramount's lawyers charged defendants, rather than requiring Paramount to prove 'that the rates claimed are market rates' ' As far as we can tell, SRZ has never come forth with any evidence to show that the rates charged by Paramount's lawyers are not market rates. The district court therefore did not abuse its discretion by accepting these rates as reasonable.' 

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Sanctions/Misleading Declaration. The U.S. District Court for the Central District of California sanctioned counsel for Beach Boy Mike Love in Love's suit over use of a Beach Boys photo on the cover of a CD retrospective of Beach Boy Brian Wilson's career that was distributed by a UK newspaper. Love v. The Mail on Sunday, CV 05 7798 ABC PJWX. Love had sued for unfair-competition under the federal Lanham Act, but the district court ruled that the Lanham Act didn't apply because it was 'undisputed that the allegedly infringing acts occurred overseas.'

The court then assessed $1000 against Love's counsel. Though not large, the sanction was strongly worded. The court had already 'admonished Plaintiff for his disingenuous claim of California residence after he consistently alleged in previous filings that he is a Nevada resident ' In that same Order, the Court admonished Plaintiff for submitting a sloppily-assembled opposition brief.'

The court noted: 'Plaintiff's counsel submitted a Declaration of Steven Surrey, their only evidence of any CDs reaching the U.S. market. Therein, Surrey claims that he purchased one of the CDs over eBay ' [But] he has apparently been either co-plaintiff with Alfred Rava, or represented by Rava or Flynn & Stillman (both are Plaintiff's counsel in this action), in dozens of gender and age discrimination lawsuits filed against various businesses and non-profit entities ' At a minimum, Plaintiff's counsel should have disclosed his relationship with Surrey ' Not only did Plaintiff's counsel's conduct completely undermine the credibility of the Surrey Declaration and the opposition to the motion, it also unreasonably and vexatiously again lengthened or multiplied both Defendants' and the Court's work.'