A company accused of using the likeness of Jimi Hendrix without permission has been sanctioned with an “adverse inference” jury instruction by a federal judge.
Experience Hendrix LLC and Authentic Hendrix LLC, the successors-in-interest to the famous guitarist’s estate, brought the copyright and trademark infringement suit against Purple Haze Properties and associated individuals. PHP has allegedly been manufacturing, licensing, and advertising products carrying Hendrix’s name and image.
“As the docket in this matter reflects, the Court has been called upon dismayingly often to act when presented with evidence of the PHP defendants’ persistent non-compliance with basic discovery obligations,” the U.S. District Court for the Southern District of New York said Nov. 27.
PHP installed software to purge files from computer devices after Experience and Authentic filed their suit, the court found. PHP’s president also deleted 500 relevant text messages from his phone, the court said.
The decision to allow a jury to draw an adverse inference from PHP’s failure to preserve and protect evidence for trial follows months of delay tactics that had already resulted in monetary sanctions in August and September.
An adverse inference instruction means that a jury will allowed to assume the evidence, if it had been produced, would have been harmful to the legal position of the party that blocked its production.
“The Court’s firm conclusion is that no lesser sanction than the combination of an adverse inference instruction and an order directing the prompt recompense of plaintiffs for costs reasonably incurred litigating the meritorious motions for sanctions based on spoilation would adequately remedy plaintiffs’ injury,” the court said.
Experience Hendrix is represented by Shukat Arrow Hafer Weber & Herbsman LLP, LeClairRyan LLP, and Gordon Rees. Pitsicalis and PHP are represeted by the Osinski Law Offices PLLC and Bachu & Associates.
The case is Experience Hendrix, LLC v. Pitsicalis, S.D.N.Y., No. 17-cv-1927 (PAE), 11/27/18.