Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 2005 WL 22833 (S.D.N.Y. Jan. 5, 2005)
The court recently granted summary judgment for the defendants in this seminal E-discovery cost-shifting case, having concluded that plaintiffs “raised no genuine issue of material fact and that no rational trier of fact could find for plaintiffs on any of the myriad of claims made in this action.” Plaintiffs were concert promoters who claimed that booking agencies and other promoters had engaged in discriminatory and anti-competitive practices.
In ruling on the summary judgment motion, the court disregarded a summary exhibit prepared by plaintiffs as evidence of defendants’ “unvarnished racial animus.” The exhibit was an unauthenticated document, not produced by plaintiffs in discovery, which plaintiffs referenced in support of the allegation in their opposition brief that a racial epithet was used 349 times in e-mails of defendants’ employees. Despite repeated requests by defendants, plaintiffs’ counsel refused to provide the defendants with any foundational information regarding the exhibit or to produce a hard copy of the underlying e-mails referenced therein. Further, the court found that plaintiffs had violated Magistrate Judge Francis’ order (the subject of Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002)) by conducting searches of mailbox users who were not among those employees whose mailboxes the parties agreed would be searched, and by not producing hard copies of the emails identified in the contested exhibit. The court ruled that, in view of plaintiffs’ counsel’s breaches of Magistrate Judge Francis’ Order, and plaintiffs’ failure to present any evidence or argument to show that the emails constituted utterances by employees of defendants whose actions were material to the issues in the case, it would disregard the exhibit in its entirety as irrelevant material.