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Photog Sued AfroPunk Fest But Had Experts Disallowed Now Bifurcated SDNY Trial Dec 17

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Nov 11 – Photographer Mambu Boyoh sued Afropunk Fest 2015 for allegedly violating his copyright. Now the case is nearing trial, but might be derailed if his experts are disallowed. 

  On October 22 U.S. District Court for the Southern District of New York Judge Denise L. Cote held a final pre-trial conference. Inner City Press covered it.

  Judge Cote asked about prospective witnesses, disallowing some as being put forward too late. She reserved judgment on the plaintiff's experts, while noting that without them, it would be hard for a jury to impose damages.

  Then on October 26 Judge Cote ruled that the two experts are excluded. The survey evidence is irrelevant; the other expert invites speculation, Judge Cote ruled. She asked why she should not now dismiss the case.

  Bayoh on October 27 responded that he can still seek a permanent injunction against the use of his photographs.

  Now on November 11, Judge Cote has provided for a limited or bifurcated trial on December 17, "solely on the existence of irreparable harm" - "ORDER The plaintiff having indicated in the November 10, 2020 submission that it seeks a permanent injunction and the defendants having indicated in that same submission that they wish to move to vacate the preliminary injunction issued on July 11, 2018, it is hereby ORDERED that a bifurcated trial will be held on the plaintiffs request for a permanent injunction. If the plaintiff is able during the first phase of the trial to show irreparable harm, a trial will be held on the remaining elements of its request for an injunction. The following schedule shall govern the further conduct of pretrial proceedings in this case: 1. On November 20, 2020 by noon, the plaintiff shall serve, and by December 2 by noon, the defendants shall serve: (a) Proposed Findings of Fact and Conclusions of Law; (b) those portions of depositions that are being offered as substantive evidence, along with a one-page synopsis (with transcript citations) of such testimony for each deposition; and (c) affidavits constituting the direct testimony of its witnesses, except for testimony of an adverse party, a person whose attendance must be compelled by subpoena, or a witness for whom a party has requested and the Court has agreed to hear the direct testimony at hearing. Each filing shall relate to the existence of irreparable harm only. 2. At the same time (by November 20 for plaintiff; by December 2 for defendants), the parties shall file their Proposed Findings of Fact and Conclusions of Law and any Memorandum of Law. Each filing shall relate to the existence of irreparable harm only. 3. Three days after submission of the witness affidavits, counsel for each party shall submit a list of all affiants that he or she intends to cross-examine at the hearing. Affiants for whom such notice is not given are not required to be present at the hearing. 4. By December 8, the plaintiff shall file any Reply Memorandum of Law. The plaintiff may not file a Reply Memorandum of Law unless it filed an initial Memorandum of Law on November 20. Any reply may only address issues it was unable to anticipate as of November 20. 5. At the time the above-described documents are filed or served, counsel shall also send a complete set of the documents to the Courts Chambers email: The case name, case number, and email contents should be clearly set forth in the emails subject line. IT IS FURTHER ORDERED that on December 2, the defendants shall file any motion to vacate the preliminary injunction. The plaintiff shall file any opposition to the motion to vacate on December 8; any reply shall be served by December 11 at noon. IT IS FURTHER ORDERED that a trial on the plaintiffs request for a permanent injunction, confined solely to the existence of irreparable harm, will be held on Thursday, December 17 at 9:30 a.m. IT IS FURTHER ORDERED that the parties shall confer regarding whether that trial may be conducted solely through the Courts consideration of the trial evidence submitted on November 20 and December 2, or whether either party requests an opportunity to cross-examine witnesses. In the event a party seeks to cross-examine witnesses, the parties shall confer regarding whether the trial may be conducted remotely and the witnesses appear for cross-examination via video. The parties shall notify the Court by December 4 of their positions on these issues. (Signed by Judge Denise L. Cote on 11/11/20) (lc) (Entered: 11/11/2020)."

The case is KNF Bayoh v. Afropunk Fest 2015 LLC et al., 18-cv-5820 (Cote)


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