In a November 19, 2013 letter submitted to United States District Court Judge Frederic Block, the artists’ attorneys “advised” the Court that “under the cover of darkness last night, Defendants clandestinely painted all of the works of visual art at 5Pointz.”
The artists’ attorneys went on in their letter to accuse to accuse the owners of improperly engaging in self-help, calling the whitewashing a “gratuitous act of spoliation” and “a stunning display of disrespect to the authority of this Court and an attempt to ensure that Plaintiffs could not preserve the numerous works of visual arts.” The artists’ counsel went on to argue that the owners had an affirmative duty to preserve the artwork because they knew the artwork was relevant to the pending proceedings. To support this argument, the artists’ counsel invoked the oft quoted and seminal spoliation case of recent vintage from the Southern District of New York, Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (SDNY 2003).
The artists’ counsel concluded their letter by requesting a conference to set a discovery schedule and by advising the Court that the artists intend to seek enhanced damages under VARA due to the owners’ intentional destruction of the artwork.
So, the artwork is gone (not forgotten), but the legal battle rages on!