District court in copyright case sanctions energy drink and supplement company for its failure to produce infringing TikTok videos and engagement data, ordering adverse inference factual inferences as well as attorneys’ fees.

Plaintiff record labels sued the energy drink and sports nutrition supplement company Vital Pharmaceuticals Inc., dba Bang Energy, for direct, contributory and vicarious copyright infringement stemming from the unauthorized use of plaintiffs’ sound recordings in dozens of videos posted to Bang’s TikTok account and the accounts of various TikTok influencers with whom Bang partnered.

Plaintiffs moved for sanctions for spoliation after Bang failed to produce all of the allegedly infringing TikTok videos and engagement data for the videos. Prior to the discovery cutoff date, the parties met with the district court to discuss the status of the videos that Bang had not yet produced. The court held five separate discovery hearings at which it ordered Bang to produce the videos at issue along with their engagement data. Nevertheless, Bang failed to turn over the videos prior to the court’s deadlines, though it did provide photographs of some of the videos. Bang also belatedly provided plaintiffs with some of the missing videos, though many were still missing from their production, as was most of the engagement data, and the videos and data subject to the sanctions motion were all produced after plaintiffs filed for summary judgment.

The court found that plaintiffs met their burden of demonstrating bad faith, defined here as conduct evidencing more than mere negligence, on the part of Bang. The court noted that though Bang made rolling productions of the requested video files after the discovery cutoff date, that was insufficient to show good faith, as the productions were made unilaterally, well after the many discovery hearings on the issue and after summary judgment motion practice, and consisted of material that Bang should have had in its possession during the discovery period. As such, the court did not account for any productions after the discovery cutoff date in its decision.

Consistent with a decision made in another case against Bang in which plaintiffs moved for sanctions based on similar evidence spoliation, the court granted plaintiffs’ motion in part, allowing for (a) the adverse inference that should song ownership be proven, plaintiffs had also established the second element of a copyright infringement claim – copying of constituent elements of the work that are original; (b) the adverse inference that for each video without engagement data, the video had the same reach as a comparable post by the account on which the video was posted; and (c) reasonable attorneys’ fees related to the spoliation motion.