On motion sequence 002, plaintiff, Lola Production, Inc., moves to hold defendants Anthony Birbilis and Casa Projects, LLC, in civil contempt of court.

Plaintiff argues that defendants failed to comply with this court's November 13, 2024, determination after oral argument on motion sequence 001, preliminarily enjoining defendants from using plaintiff's proprietary information and from soliciting plaintiff's clients in November 2024. (NYSCEF No. 55.) Plaintiff seeks monetary sanctions and an extension of this court's order through the pendency of this action that would prevent defendants from soliciting or contacting clients with which defendants worked while employed by plaintiff. (NYSCEF No. 55.) Plaintiff also moves to compel defendants to comply with plaintiff's discovery requests. Plaintiff argues that defendants' responses to plaintiffs' requests will indicate the full extent to which defendants are failing or refusing to comply with this court's order.

Plaintiff is a specialized production company that provides creative services to high-end clients in the fashion industry. On December 1, 2021, plaintiff hired Birbilis as a production executive. At the completion of the hiring process, Birbilis and plaintiff entered into an employment agreement, which provided that Birbilis could not access any confidential proprietary information or trade secrets if his employment with plaintiff were terminated. [*2](NYSCEF No. 16.) Plaintiff terminated Birbilis for cause in November of 2023. After his termination, Birbilis established a production business called "Casa Projects."

I. Whether defendants are in contempt

Plaintiff moves under CPLR 5104 and Judiciary Law § 753 (a). This court agrees with defendants that CPLR 5104 is inapplicable here. That provision permits enforcement of an order by contempt only once a party has served a certified copy of the order on the party bound by it. Here, as plaintiff acknowledges on reply, plaintiff relied on the fact that this court's uploading of the order sufficed to put defendant on notice of that order. But CPLR 5104 expressly requires service of a certified copy of the order. Plaintiff did not itself serve the order on defendants. The CPLR 5104 branch of plaintiff's motion is denied.

With respect to Judiciary Law § 753 (a), four elements are required to support a finding of civil contempt: (1) there was a lawful court order in effect clearly expressing an unequivocal mandate; (2) it must appear, with reasonable certainty, that the party to be held in contempt has disobeyed the order; (3) the party to be held contempt had knowledge of the order; and (4) the moving party must demonstrate that its rights have been prejudiced. (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015].) Unlike criminal contempt, willfulness is not required to find a party in civil contempt. (See e.g. McCormick v Axelrod, 59 NY2d 574, 583 [1983].)

There is no dispute about the first and third elements of civil contempt. The parties agree that this court's order granted plaintiff's motion in part, enjoining defendants from using plaintiff's intellectual property and proprietary operating systems. (NYSCEF No. 55.) There is also no dispute that the defendants knew about the order.

The dispute is whether plaintiff has proven that defendants disobeyed this court's order, thereby prejudicing plaintiff's rights. (NYSCEF No. 55). Plaintiff asserts that during Birbilis's employment with plaintiff, defendants misappropriated proprietary operating systems, trade secrets, and other confidential resources belonging to plaintiff. (NYSCEF No. 62.) Plaintiff specifically refers to tools, data sets, templates and other intellectual property. (NYSCEF No. 14.) Plaintiff argues that Birbilis used plaintiff's trade secrets to establish a new business to solicit plaintiff's clients. Plaintiff further alleges that defendants' actions violated this court's November 2024 Order. (NYSCEF No. 55.)

A. Preliminary injunction enjoining Casa Projects from contacting or soliciting plaintiff's clients

Exhibit #1 details a scheduled photo shoot that Casa Projects was scheduled to produce with plaintiff's client, Chandelier Creative, on February 4, 2025. (NYSCEF No. 58.) Plaintiff argues that Casa Projects' call sheet (a document providing details of a production) with Chandelier Creative demonstrates that defendants failed to comply with the portion of this court's preliminary injunction, preventing defendants from doing business with plaintiffs' clients (e.g., Chandelier Creative). Plaintiff argues that defendants undoubtedly contacted or solicited with one of plaintiff's clients (Chandelier Creative), in contempt of this court's preliminary injunction.

Plaintiff has not demonstrated with reasonable certainty that defendants violated this court's preliminary injunction. (NYSCEF No. 55.) First, defendants attached Exhibit C to this motion. Exhibit C details a scheduled a photo shoot between Casa Projects and Chandelier Creative dated June 25, 2015—eight years before plaintiff hired Birbilis. (NYSCEF No. 74.) Defendants argue that the detailed photo shoot with Chandelier Creative contradicts plaintiff's [*3]argument that defendants are in contempt. The previous preliminary injunction prohibited defendants from soliciting or contacting clients with whom defendant established a relationship during Birbilis's employment with plaintiff. Exhibit C demonstrates at least one exchange between Birbilis and Chandelier Creative that pre-dated defendant's employment with plaintiff.

The branch of plaintiff's motion to enjoin Casa Projects from contacting or soliciting plaintiff's clients is denied.

B. Preliminary injunction enjoining defendants from using plaintiff's intellectual property

Plaintiff argues that defendants continue to use plaintiff's proprietary operating systems and intellectual property in violation of this court's November 2024 order. (NYSCEF No. 55.) Plaintiff asserts that Birbilis did not return his borrowed company laptop until two weeks after his termination. Plaintiff also asserts that during those two weeks, defendants allegedly downloaded plaintiff's server, which contains proprietary operating tools and trade secrets. (NYSCEF No. 14.)

Plaintiff submits recent call sheets and budget spreadsheets that it created, and separate call sheets and budget sheets recently created by defendants. Plaintiff contends that defendants' call sheet and budget sheets are almost identical to those belonging to defendants, and therefore constitute evidence that defendants misappropriated plaintiff's proprietary information.

In opposition, defendants submit call sheets that defendants created previously in 2015 and 2016. Defendants argue that the 2015 and 2016 call sheets were created by defendants themselves while working for a separate production company years before Birbilis ever worked for plaintiff. (NYSCEF No. 74.) Defendants' 2015 and 2016 call sheets have the same information—including stylists, lighting, and other production details—as the recent call sheets defendants created after plaintiff terminated Birbilis. The court therefore concludes that plaintiff has not shown that defendants used their proprietary information to construct their own production documents.

The branch of plaintiff's motion for civil contempt is denied.

C. Reinstatement of preliminary injunction

Plaintiff requests a reinstatement of the preliminary injunction barring defendants from rendering services to clients and business relations Birbilis worked with when he was employed by plaintiff. (NYSCEF No. 66.) Plaintiff argues that the similarity between call sheets submitted by both defendant and plaintiff prove that defendants used plaintiffs' proprietary information. (NYSCEF No. 66.) But plaintiff has not specified the nature of future harm to plaintiff or plaintiffs' business. Plaintiff also has not proven how defendants allegedly violated this court's prior preliminary injunction, aside from the submission of similar-looking call sheets by both parties. Plaintiff thus has not provided a clear rationale why reinstatement of the preliminary injunction is warranted.

The branch of plaintiff's motion to reinstate the preliminary injunction is denied.

II. Whether defendants should be compelled to respond to discovery requests

CPLR 3124 authorizes parties seeking disclosure to move to compel compliance or response, if the opposing party fails to respond or comply with any request, notice, interrogatory, or order.

Plaintiff contends that defendants have failed to provide meaningful disclosures in response to plaintiff's discovery requests. Plaintiff argues that although defendants have submitted some responses following the filing of plaintiff's second motion, the disclosures [*4]remain inadequate. However, plaintiff has not specified how the disclosures fall short.

Plaintiff's request to compel discovery is denied.

Accordingly, it is

ORDERED that plaintiff's motion is denied.