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PLAYBOY ENTERPRISES, INC. v. WELLES

August 2, 1999

PLAYBOY ENTERPRISES, INC., PLAINTIFF,
v.
TERRI WELLES, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Stiven, United States Magistrate Judge.

       ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S REQUEST
                               FOR DISCOVERY

I.

INTRODUCTION

On July 21, 1999, a discovery conference was conducted in Courtroom E, before the Honorable James F. Stiven, United States Magistrate Judge. Ms. Juanita R. Brooks appeared on behalf of Plaintiff Playboy Enterprises. Ms. Dorothy A. Johnson appeared on behalf of Defendants Terri Welles and Terri Welles, Inc.*fn1 Plaintiff requested the discovery hearing to address four issues: (1) whether Plaintiff could have access to Defendant's hard drive to attempt to recover e-mails Defendant has deleted which may be relevant for discovery in this action; (2) whether Plaintiff could discover Defendants' federal and state income tax returns; (3) to ask the Court to require Defendant to respond to Plaintiffs Interrogatory Number 24, which requests that Defendant provide the factual basis for denying Plaintiffs Request for Admissions Numbers 1 and 2, and Interrogatory Number 25, which demands that Defendant update and/or correct prior discovery responses; and (4) whether Plaintiff could propound three additional interrogatories to Defendant relating to Defendant's claims for emotional distress based on attorney's fees she has incurred during this litigation. Having considered the written submission of the parties and heard oral argument, the Court FINDS and ORDERS as follows:

II.

BACKGROUND

Plaintiff, Playboy Enterprises Incorporated, owns and utilizes the trademarks Playboy, Playmate, Playmate of the Month, and Playmate of the Year, in connection with Playboy Magazine and various goods and services sold by Plaintiff and/or its licensees. Defendant, Terri Welles, posed in Playboy magazine as a Playmate of the Month model in 1980 and was designated Playmate of the Year in 1981. Defendant has established and is operating a personal website on the Internet. Plaintiff alleges that Defendant has used and continues to use Plaintiffs Playboy and Playmate trademarks throughout her website, without authorization from Playboy. Plaintiff claims that Defendant is infringing on its trademarks, diluting its trademarks, and is unfairly competing with Plaintiff. Defendant has counterclaimed for damages due to defamation, interference with prospective business advantage, intentional infliction of emotional distress, and unfair competition.

The discovery conference was requested by Plaintiff when Plaintiff learned that Defendant Welles may have in the past deleted, or continues to presently delete, e-mail communications which have been requested for production by Plaintiff. In response to a request for production of documents, Co-Defendant Huntington produced two e-mail communications between Defendant Welles and Janey Huntington that Defendant Welles had not produced herself. Plaintiff contacted Defense counsel to inquire why these e-mails had not been produced by Defendant. It appears to the Court that during meet and confer attempts between counsel during May and June 1999, Plaintiff learned from Defendant's counsel that Defendant has had a custom and practice of deleting electronic mail soon after sending or receiving e-mail. Plaintiff asserts that Defendant has continued this practice throughout the litigation, irrespective of whether the e-mail is responsive to Plaintiffs request for production of documents. Plaintiff requests access to Defendant's personal computer hard drive to make a "mirror image" of the hard drive, and then have Defense counsel review the recovered e-mails to produce relevant and responsive documents.

Plaintiff also requests that Defendant produce her personal and corporate income tax statements. Plaintiff has requested financial information from Welles, but alleges that Welles has failed to provide sufficient information for Plaintiff to determine the damages it has allegedly suffered due to Defendant's use of Plaintiff's trademarks. Plaintiff also asserts that such financial information is relevant to claims raised by Defendants' counterclaims.

Third, Plaintiff requests the Court to order Defendant to respond to Interrogatory Number 24, which requests that Defendant provide the factual basis for denying Request for Admission Numbers 1 and 2. Requests for Admission Number 1 asks Defendant to admit for purposes of Defendant's defamation claim that she is a "public figure" as defined in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Request for Admission Number 2 asks Defendant to admit that a specific contract required that she or Pippi, Inc. obtain written permission from Playboy Enterprises before Defendant used her name with the designation "Playmate of the Year." Plaintiff asserts that these requests were denied by Defendant without objection, but she did not provide the facts on which her denial is based. Plaintiff also requests Defendant to respond to Interrogatory Number 25, which requested that Defendant update and/or correct prior discovery responses.

Lastly, Plaintiff asks that the Court allow Plaintiff to propound three additional interrogatories on Defendant relating to Defendant's claim for emotional distress, for which damages are based, in part, on the attorneys' fees she has paid and incurred. Plaintiff alleges that it did not have the opportunity to ask Defendant about these fees earlier because Plaintiff only recently learned of this claim of emotional distress based on attorneys' fees incurred after receiving notes from Defendant's psychologist, Dr. Sears.

III.

DISCUSSION

A. Recovery of Deleted E-mails from Defendant's Hard Drive

Plaintiff requests that it be able to access Defendant's hard drive to attempt to recover deleted files which may be stored on the hard ...


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