Sean_OBrien wrote:

 Breotan wrote:

czakk wrote:
There is an email chain from Moskin to the Copyright office. Basically, before the summary judgment the registrar says 'we can't register these shoulder pads'.

He doesn't disclose the emails to the court or CHS, despite emailing CHS to say he would disclose any correspondence with the copyright folks (as part of the discovery process).

Then, Moskin turns around and emails the copyright folks and says 'hey, there has been a ruling in a federal court that says we can copyright shoulder pads, please do it now'.

He's got big brass ones.

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.267.2.pdf <--- Starts around page 131, the doozy is at 137

Isn't this some sort of ethics violation?

Generally speaking, and normally sanctionable - though the issues of what it means is somewhat more grey. There are specific laws which require disclosure of evidence during discovery for criminal cases - it is less firmly set out though for civil trials and generally ends up falling into the realm of contempt and similar local rules. If you take a look at Rule 26 of the Federal Rules of Civil Procedure it covers what must be disclosed by each side as well as some guidelines and related information on the timelines relating to discovery. Rules are squishy though, and if you break a rule...it isn't the same as breaking a law.

The bigger thing is that it makes GW seem even more like Lucille Ball, and it puts the judge in the position of Desi... Lucy, You got some 'splainin' to do. When the judge reconsiders if he should reconsider his summary judgement...unless GW can demonstrate some exceptional reason that they didn't pass on the information to CHS, it will be sitting in the back of the judge's head when he is contemplating the issues at hand.

How much of an impact it may have will really depend on how the judge is feeling. There is enough for the judge to hang his hat on for a complete reversal regarding the protectibility of the shoulder pads (and everything that is derived from the base shoulder pad design). He could stick with what he already ruled upon as well, since although the opinion of an expert agency should be given deference...it isn't mandatory that they agree with anything that the USCO says.

As described above, the discovery disputes in this case have been numerous. Neither party has been entirely without fault in adding to the costs of discovery. However, as pointed out above, Rallo has consistently and repeatedly failed to respond to discovery requests in a straightforward manner necessitating numerous and repeated motions to compel and requiring Gallo to expend tens of thousands of dollars in attorney fees. Furthermore, Rallo has failed to comply with very specific portions of this Court's November 8, 2007 Order.

Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel by Gallo which were granted by the Court and its specific failure to obey the Court's Order of November 8, 2006.

These sanctions are payable to Gallo's counsel within 20 days of service of this Order. As discussed in this Order, Rallo is also precluded from using at trial or in dispositive motions, evidence which has not been provided to Gallo in response to discovery.

IT IS SO ORDERED.

MINUTE entry before Honorable Matthew F. Kennelly: Ruling on motion for reconsideration, 267[RECAP] is reset to 1/14/2013 at 9:30 AM. Reply to motion is to be filed by 1/10/2013. Lead counsel is ordered to appear in person at the ruling. (or, ) (Entered: 01/08/2013)

 Kroothawk wrote:
My guess is that Moskin has to appear before court so that he gets a ruling/fine against him in person.

czakk wrote:

Perhaps someone with more experience can say what is meant by the 'reply to motion' bit being due on the 10th. Does that mean CHS gets to submit a reply brief (a short answer to GWs reply)

czakk wrote:
Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel

 Smacks wrote:

czakk wrote:
Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel

Is that all? $10,000 would be pittance for GW. Even for Moskin himself, I doubt it would break the bank. GW getting precluded from bringing forward any more new evidence would be interesting though. That would certainly put the kibosh on any future attempts to falsify and backdate stuff as they need it. They would actually have to have *gasp* a case planned out in advance. Very interesting.

 Dawnbringer wrote:

 Smacks wrote:

czakk wrote:
Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel

Is that all? $10,000 would be pittance for GW. Even for Moskin himself, I doubt it would break the bank. GW getting precluded from bringing forward any more new evidence would be interesting though. That would certainly put the kibosh on any future attempts to falsify and backdate stuff as they need it. They would actually have to have *gasp* a case planned out in advance. Very interesting.

True, but that was for the other case, and while I don't know the details, apparently it was between a couple wineries, to whom 10 grand may not have been back breaking, but to suddenly have to come up with may not have been pocket change either.

DECLARATION OF JENNIFER A. GOLINVEAUX IN SUPPORT OF DEFENDANT CHAPTERHOUSE STUDIOS LLC’S MOTION TO WITHDRAW MOTION FOR RECONSIDERATION PENDING FINAL DETERMINATION ON REGISTRATION OR ABANDONMENT

I, Jennifer A. Golinveaux, declare as follows:

1. I am a partner with the law firm of Winston & Strawn LLP. I am a member in
good standing of the Bar of this Court. I have personal knowledge of the facts set forth herein and if called to testify could and would do so competently.

2. Attached hereto as Exhibit A is a true and correct copy of correspondence between Games Workshop Limited (“GW”) and the U.S. Copyright Office that GW produced on January 4, 2013, Bates labeled GW0011391-438.

3. GW has been vague about whether it has now compiled and produced all of its correspondence with the Copyright Office related to works-in-suit. After the Court appearance on January 7, 2013 I asked counsel for GW, Jason Keener, to confirm whether all correspondence had been produced. Keener responded that he would have to confer with lead trial counsel, Jonathan Moskin. GW has not further responded to CHS’s request to confirm it has now produced all correspondence with the Copyright Office regarding the works-in-suit.

4. A true and correct certified copy of the “Assault Squad Shoulder Pads” file from the Copyright Office is attached hereto as Exhibit B. This file contains several E-mails between GW’s lead trial counsel, Jonathan Moskin, and the Copyright Office regarding GW’s copyright application for that product. The Copyright Office responded to GW’s “Assault Squad Shoulder Pads” copyright application on June 7, 2012—two months before summary judgment motions were filed in this case.

5. Attached hereto as Exhibit C is a true and correct copy of Games Workshop Limited’s (“GW”) Second Revised Copyright Chart (“Second Rev. Claim Chart”), which it served on Chapterhouse Studios LLC (“CHS”) on August 3, 2012.

6. Attached hereto as Exhibit D is a true and correct copy of Games Workshop Limited’s (“GW”) Copyright Chart for the New Allegedly Infringed Products that were added in GW’s Third Amended Complaint (“New Products Claim Chart”), and which it served on CHS on December 12, 2012.

I declare under the penalty of perjury that the foregoing is true and accurate.

9. Although CHS believes that the Copyright Office Registration Specialist’s repeated rejection of the sculptural element of the Assault Squad Shoulder Pads was highly relevant to the Court’s summary judgment ruling—and wrongfully withheld from consideration by GW—in light of the Court’s concerns about relying on potentially non-final rejections by the Copyright Office, CHS requests to withdraw its Motion and will seek to re-file it if and only if the Copyright Office Supervisory Specialist rejects the sculptural claim of the application, or if GW strategically allows that claim to become abandoned.

This docket entry was made by the Clerk on Monday, January 14, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:Motion for reconsideration [267] is granted in part and withdrawn in part.

Motion to withdraw [272] is granted. (or, )

sanction GW by awarding CHS costs for its independent investigation to uncover this improperly withheld evidence and directing GW to produce all correspondence between GW or GW’s counsel and the Copyright Office within seven days of entry of an order granting CHS’s motion.

 Ouze wrote:
Indeed, I too am confused about the final disposition of the shoulderpad issue - protectable, or not?

czakk wrote:

 Ouze wrote:
Indeed, I too am confused about the final disposition of the shoulderpad issue - protectable, or not?

CHS asked the judge to reconsider his ruling on the shoulder pads (and to dismiss some claims, which GW agreed to) based on emails they obtained between Mr. Moskin and the copyright registrar. The copyright folks refused to register the shoulder pads.

GW brought up the fact that the copyright office's "no" wasn't necessarily a final answer, just an initial screening - there is an appeals process and what not to go through before it is final.

At the motion hearing the judge had concerns about revisiting his earlier decision based on what might not be final decision from the copyright office. If he went back and said 'no you can't copyright shoulder pads' and then the copyright office came back and said 'yes you can' he'll have wasted a bunch of time etc...I think he suggested CHS withdraw the motion until the copyright office's final decision.

CHS said, okay we understand your concerns judge, we'd like to delay you having a second look at your decision until the copyright office gives a final answer. Oh and by the way, because Mr. Moskin didn't reply to the copyright office for over 40 days, we think they will likely close the file without allowing an appeal.


Judge says, - okay, refile your motion when the copyright office gives a final answer.

As far as the sanctions and turning over of any emails between the copyright office and GW, we don't know for sure what happened and won't until either a written order is produced, or it is referenced in a future filing, or the transcripts are put up (which takes forever).