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Azita Zendel v. Abc Video Productions

July 25, 2011

AZITA ZENDEL,
PLAINTIFF,
v.
ABC VIDEO PRODUCTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

For many months, and continuing to the present date, Plaintiff*fn1 has failed and refused to give Defendants basic discovery to which the Defendants are entitled. More than once, the Court ordered Plaintiff to provide this discovery. The Court imposed monetary sanctions on Plaintiff for failing to comply with the Court's order and for unreasonably causing Defendant ABC Video Productions ("ABC") to incur expenses in bringing a discovery motion. Plaintiff is in continuing violation of the Court's various discovery orders, including the order for sanctions. On more than one occasion, the Court has warned Plaintiff that failure timely to provide the ordered discovery might result in the imposition of terminating sanctions against Plaintiff. Still, Plaintiff has failed timely to provide the discovery to which Defendants are entitled. As discussed below, terminating sanctions are now appropriate.

FACTUAL FINDINGS

Plaintiff filed this action on April 19, 2010. Plaintiff contends that, through an episodic television program entitled "Ugly Betty," Defendants infringed Plaintiff's asserted copyrights in a screenplay entitled "Silent Partners" and a motion picture entitled "Controlled Chaos."

On December 22, 2010, Defendants ABC, Touchstone Television, Reveille Productions, and Ventanarosa Productions served on Plaintiff Defendants' first set of requests for production of documents. These requests sought basic discovery relevant to Plaintiff's claims and Defendants' defenses. On December 22, 2010, ABC served on Plaintiff its first set of interrogatories. These interrogatories sought basic discovery relevant to Plaintiff's claims and the Defendants' defenses, including the discovery of Plaintiff's contentions regarding alleged similarities between "Ugly Betty" and Plaintiff's alleged works.

In early 2011, Plaintiff failed to produce a single document in response to the request for production, and provided patently inadequate responses to the interrogatories. Plaintiff failed to cooperate in Local Rule 37 procedures leading up to a motion to compel.

On March 8, 2011, Defendant ABC Video Productions filed "Defendant ABC Video Productions' Motion to Compel Discovery Responses and Document Production By Plaintiff Azita Zendel, etc." ("the March Motion"), noticing a hearing to occur on April 8, 2011.

On March 24, 2011, Plaintiff filed an ex parte application seeking a continuance of the April 8, 2011 hearing. By Minute Order dated March 29, 2011, the Court permitted additional briefing concerning the March Motion, but refused to continue the April 8, 2011 hearing.

Plaintiff failed to appear for the April 8, 2011 hearing, although Plaintiff filed another ex parte application and a motion for protective order on April 8, 2011.

By Minute Order dated April 11, 2011, the Court ruled on the March Motion and on Plaintiff's April 8 ex parte application and motion. The Court granted the March Motion in substantial part, and denied Plaintiff's April 8 application and motion in substantial part. The Court ordered that Plaintiff serve supplemental answers without objection to Interrogatories Nos. 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 18 on or before May 9, 2011. The Court also ordered that Plaintiff produce on or before May 9, 2011, all documents within Plaintiff's possession, custody or control that are responsive to certain requests for production, as specified in the April 11, 2011 Order. Although Plaintiff had not sufficiently supported any request for a protective order, out of an abundance of caution, the Court ordered that "use of the interrogatory answers served and the documents produced in response to this Order shall be limited to use for purposes of this litigation only." Contrary to Plaintiff's subsequent arguments, this protective order was binding on all Defendants, not just on ABC. The Court's April 11, 2011 Order denied the March Motion's request for sanctions, but cautioned Plaintiff "that failure timely to comply fully with this Order may result in the imposition of severe sanctions, including, without limitation, monetary sanctions, preclusion sanctions, and/or dismissal with prejudice of all of Plaintiff's claims."

On May 3, 2011, Plaintiff filed an ex parte application seeking reconsideration of the April 11, 2011 Order. The Court denied this application by Minute Order dated May 4, 2011.

When the May 9, 2011 deadline in the April 11, 2011 Minute Order expired without counsel for Defendants having received any supplemental responses from Plaintiff, counsel for Defendants sent Plaintiff an email indicating that responses had not been received (See Declaration of Vincent Cox, filed June 3, 2011, and exhibits thereto). On May 12, 2011, counsel for Defendants sent Plaintiff a letter, by mail and email, reiterating that no supplemental responses had been received and demanding Plaintiff's cooperation in Local Rule 37 procedures. Plaintiff then spoke with counsel for Defendants, promising to meet with him on May 21. Id. In this conversation, Plaintiff did not claim that she already had served supplemental responses. Id. On May 21, 2011, approximately an hour and a half before the scheduled meeting, Plaintiff sent ...


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