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JOE HAND PROMOTIONS v. SPORTS PAGE CAFE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


August 15, 1996

JOE HAND PROMOTIONS, Plaintiff,
v.
SPORTS PAGE CAFE, INC., d/b/a SPORTS PAGE CAFE, THOMAS RUSSO, JOSEPH V. MAIO, 40 3rd STREET CORP., d/b/a LAJAS NIGHT CLUB, LAS MARVALILLAS, INC., d/b/a LAS MARAVILLAS, INC., MANUEL RODRIGUEZ, BEERBALL, INC., d/b/a DOMYON'S COURTSIDE PUB, RICHARD L. RUBERTO, QUINONES, INC., d/b/a HECTOR'S SPORTS BAR, HECTOR QUINONES, UNITED PUERTO RICAN COUNCIL, d/b/a UNITED PUERTO RICAN COUNCIL, VIRGINIA MARTINEZ, FRANCES VELAZGUEZ, and FILOMENA APONTE, Defendants; UNITED PUERTO RICAN COUNCIL d/b/a UNITED PUERTO RICAN COUNCIL, Counter-claimant.

The opinion of the court was delivered by: POLITAN

Before the Court comes a matter of moment

 Deserving of lengthy, unusual comment.

 Sanctions are sought in various forms

 For alleged violations of discovery norms.

 Defendants *fn1" are asking that this Court now impose

 Sanctions on plaintiff who failed to disclose

 Materials they say are vital to their case,

 If plaintiff's claims they must eventually face.

 The matter arises from the alleged display

 Of a boxing match, which plaintiff does say

 The defendants screened while not bothering to pay,

 Which they oughtn't to do, but they did anyway.

 The genesis happened on an April night *fn2"

 When plaintiff promoted a boxing fight

  And transmitted it live for the usual fee

 For paying subscribers to watch on T.V.

 The bout was between Messrs. Holmes and McCall

 Whose pugilistic talents are well-known to all.

 The match evoked international attention

 But the outcome herein shall go without mention.

 Defendants allegedly exhibited the match

 In their respective taverns for their patrons to catch.

 Plaintiff's complaint is based on that section

 Installed in the Code for easy inspection

 Which forbids such transmissions, recorded or live:

 47 U.S.C. Section 605. *fn3"

 Plaintiff, the promoter, is asserting his right

 To receive compensation for transmitting the fight.

 On the night in question plaintiff sent out

 Detectives to find who was showing the bout

 Without paying for the privilege as they properly ought

 In the vain expectation that they wouldn't be caught.

 Investigator Mesis was among the hired legions

 Who searched for non-payers in several regions. *fn4"

 He sought out bar-owners at many locations

 To detect, if he could, ongoing violations

 Of Section 605, i.e., screening the fight

 Without paying their dues as they ought to, of right.

 On detecting a sponger at each new location

 He'd vacate the premises and begin recitation

 Of his recent detections on a micro-recorder

 Or he'd jot down his notes -- we're not sure of the order. *fn5"

 He later transcribed these in legible form;

 Then mislaid the cassette(s), as may well be the norm. *fn6"

 So his taped observations are no longer around

 Be they lost or destroyed, they cannot be found,

 Because Mesis transcribed and failed to preserve them

 Or otherwise keep them, or hold or conserve them.

 So now come defendants with their formal epistle *fn7"

 Seeking several sanctions, including dismissal;

 Or, alternatively, they ask for a jury instruction

 Adversely inferring intended destruction

 Of relevant evidence; or else that the Court

 Preclude any mention of the Mesis report;

  And, finally, they ask -- along with preclusion --

 That monetary fines be imposed in profusion. *fn8"

 The Court, however, must now be objective

 Because sanctions imposed are always elective *fn9"

 As a judicial measure they're not taken lightly --

 Imposed only sparingly, fairly and rightly. *fn10"

 In the instant case the horse has not bolted;

 The status quo has merely been jolted.

 With Mesis deposed, his notes readily available

 His memory processes are clearly assailable.

 The lawyers have failed to brief the concern

 As to what, if anything, the jury might learn

 About Mesis' notes -- be they paper or taped;

 Be they celluloid, crumpled, or curiously shaped. *fn11"

 Counsel fail to acknowledge the rules of admission

 Which ever have governed evidential submissions. *fn12"

 As such, thus, and therefore, and ergo, and hence,

 The Court cannot presently rule for defense.

 Was this spoliation? *fn13" Or a calculated ruse

 Designed to obstruct, to mislead, and confuse

 The Court and the jury in their search for what's true?

 Or was it maybe an innocent simple snafu?

 The Court is not satisfied that perfidious antics

 (Rhyme is not easy -- excuse the semantics)

 Are afoot and affecting the within litigation --

 Not the most monumental in the courts of the nation.

 Therefore, the Court is now forced to conclude

 That, with all of the parties' submissions reviewed, *fn14"

 Insufficient showing has thus far been made

 That Mesis, the investigator, intentionally strayed

 From the 'sacrosanct' rule that the tapes be preserved

 And then, in discovery, appropriately served

 Upon the defendants deserving of same.

 These are the longstanding rules of the game.

 But sometimes the Court is asked to decide

 If a party has intentionally plotted to hide

 Relevant evidence the other side needs

  To disprove allegations of civil misdeeds.

   In this case the issue has arisen, though sadly,

  Because defendants contend they've been treated so badly;

  And seek all these sanctions in retaliation

  For plaintiff's allegedly planned spoliation. *fn15"

  The Court, on this record, cannot properly find

  That plaintiff and Mesis were each of a mind

  To destroy the recorded detections, though gone,

  Which in Mesis' affidavits in essence live on.

  That Mesis shall testify, the Court does not doubt

  And the truth, by the jury, shall be fully made out.

  The jury will know if there's something to hide;

  Accordingly, motion for sanctions DENIED.

  So, on with the case, although sans the recorder;

  Attached can be found an appropriate Order.

  NICHOLAS H. POLITAN

  U.S.D.J.

  Dated: August 15, 1996

  ORDER

  THIS MATTER comes before the Court on defendants' motion to dismiss and/or for sanctions for plaintiff's failure to preserve certain cassette recordings allegedly pivotal to defendants' defenses; and the Court having fully reviewed the parties' submissions and having decided the matter on the papers without oral argument pursuant to Fed.R.Civ.P. 78; and for good cause shown as set forth in the accompanying Opinion;

  IT IS on this 15th day of August, 1996,

  ORDERED that defendants' motion be and the same hereby is DENIED.

  NICHOLAS H. POLITAN

  U.S.D.J.


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