In Walkie Check Productions, LLC v. ViacomCBS Inc., No. 21 Civ. 1214 (KPF) (S.D.N.Y. July 24, 2023), New York District Court Judge Katherine P. Failla found that the defendants did not spoliate evidence by failing to record livestreamed episodes of the BET Series that plaintiffs claimed violated the copyright of a similar series that they had been developing. Judge Failla also granted the defendants’ motion for summary judgment.

Case Background

In this case regarding copyright infringement, the Plaintiff claimed that the Defendants’ sequence of live-streamed episodes named “House Party” infringed upon their copyright of the same title. The Plaintiff held the copyright for “House Party,” a concept envisioning a broadcast from a New York City brownstone featuring an “exclusive and engaging” afterparty with musicians and celebrities. This idea was initially proposed to the Defendants, including the Black Entertainment Television network (BET), who rejected it twice.

However, in 2020, amidst the global COVID-19 pandemic, BET produced a streaming series also named “House Party.” This series featured guests, often alone or in small groups, broadcasting from their homes to entertain others during the quarantine. Each episode of the BET series wasn’t broadcast on television – instead, they were livestreamed to Instagram Live and/or Facebook Live.

The Plaintiff contended that the Defendants deserved adverse inference sanctions due to their failure to record several episodes of the BET series during live streaming, resulting in only 39 out of about 90 episodes being available for production. The Plaintiff maintained that since they had informed one of the Defendants’ lawyers of their intention to initiate claims related to the BET series, every episode that wasn’t recorded and preserved after that notification constituted a breach of the Defendants’ duty to preserve evidence.

Judge’s Ruling

Regarding the claims of spoliation, Judge Failla stated: “The notion that BET would appropriate Plaintiff’s intellectual property — which relied on social media applications that are themselves constantly evolving — and keep it in its back pocket for years until an unforeseen global pandemic stranded viewers and hosts at home strains credulity.”

Continuing, she said: “Plaintiff has also failed to show any violation of preservation obligations by Defendants. Plaintiff does not dispute Defendants’ assertion that ‘because many of the episodes were not recorded when they were livestreamed, they are no longer available.’… preservation obligations are exactly that — obligations to preserve potential evidence that, by definition, must already exist. ‘[A] failure to create records — as opposed to the destruction of records that were kept — is not spoliation.’…Because preservation obligations do not include an affirmative duty to produce new records, Defendants’ failure to implement a practice of recording the BET Series livestreams, even after receiving the alleged infringement notice from Plaintiff, cannot be the basis for a spoliation claim… The Court will not create an exception for livestreamed content to the general rule that parties have no obligation to affirmatively create new records.”

Judge Failla added in finding that failing to record livestreamed episodes was not sanctionable: “Even were the Court to find that Defendants had an obligation to record the livestreams after receiving notice from Plaintiff’s counsel, it would conclude that sanctions were not warranted on this record. The evidence suggests that, at most, Defendants were negligent in failing to take measures to record the livestreams after July 2020… What is more, even were the Court to find that Plaintiff could establish Defendants’ failure to preserve the livestreams with a culpable state of mind, Plaintiff still “cannot demonstrate that the lost evidence would have supported [its] claims,” and, as such, is not entitled to an adverse inference.”

So, what do you think? Do you agree that failing to record livestreamed episodes is not sanctionab;e? Please share any comments you might have or if you’d like to know more about a particular topic.

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