In an opinion today, Judge Cote granted Tory Burch summary judgment in a case concerning knock-off merchandise. The motion was deemed unopposed based the defendants’ misconduct, including spoliation and fabrication of evidence. In a particularly notable passage, the opinion discloses that the Court ordered a forensic examination of the defendants’ opposition papers, and, from that examination, determined that those papers were served too late:
On October 3, Tory Burch wrote the Court to advise that [defense counsel] Myerowitz had not served them with Defendants’ opposition papers (the “Opposition Papers”). On October 6, Myerowitz filed a letter with the Court representing that he had confirmed with his paralegal that the Opposition Papers had been mailed to Tory Burch on October 2 [the due date]. Later that day, Tory Burch wrote the Court with further evidence that the Opposition Papers had not been mailed on October 2: a mailing label showing the package containing the Opposition Papers had departed Newark Liberty International Airport at 7 a.m. on October 5. In a letter to the Court of October 7, Myerowitz maintained his story and chastised Tory Burch’s counsel for making “outrageous and baseless accusations.” Following receipt of Myerowitz’s letter of October 7, the Court entered an Order finding good cause to believe he had misrepresented the mailing date. The Court ordered a forensic examination of Myerowitz’s computer system to determine when the Opposition Papers were completed and set a hearing date. On October 9, Myerowitz wrote the Court to admit that Defendants’ Opposition Papers were mailed on October 3, not October 2, and to apologize for his repeated misrepresentations. At a hearing on November 6 [transcript available here], the evidence showed that Myerowitz was composing the Opposition Papers through the afternoon of October 3, knew the Opposition Papers were mailed on October 3, and knowingly misrepresented their mailing date to the Court. Despite the fact that the Opposition Papers were untimely and Defendants’ counsel had lied to the Court to hide this fact, the Court permitted Defendants an opportunity to submit a redline of the Opposition Papers, excising all passages that referred to evidence tainted by Defendants’ spoliation and fabrication. Defendants submitted a redline on November 6 that continued to rely on such evidence. Accordingly, by Order of November 12, Defendants’ Opposition Papers were stricken. As a result, Tory Burch’s motion is unopposed.