United States District Court, S.D. California
ORDER: (1) REGARDING JOINT MOTIONS FOR DETERMINATION
OF DISCOVERY DISPUTES (ECF NOS. 36, 38); AND (2) GRANTING
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER (ECF NO.
34)
DAVID
H. BARTICK United States Magistrate Judge
On June
3, 2016, Defendants Conaco, LLC (“Conaco”),
Turner Broadcasting System, Inc. (“TBS”), Time
Warner Inc. (“Time Warner”), Conan O’Brien
(“Mr. O’Brien”), Jeff Ross (“Mr.
Ross”), and Mike Sweeney (“Mr. Sweeney”)
(collectively, “Defendants”) moved for the entry
of a protective order as set forth in Exhibit A attached to
their motion. (ECF No. 34.) Plaintiff filed an opposition on
June 23, 2016, and Defendants filed a reply on June 30, 2016.
(ECF Nos. 40, 43.)
Thereafter,
on June 9, 2016, the parties filed a Joint Motion for
Determination of Discovery Dispute. (ECF No. 36.) The Joint
Motion addresses disputes concerning Plaintiff’s
responses to the First Set of Interrogatories and First Set
of Requests for Admission served by Conaco. (Id.) On
June 10, 2016, the parties filed another Joint Motion for
Determination of Discovery Dispute. (ECF No. 38.) The second
Joint Motion addresses disputes concerning Defendants’
responses to Plaintiff’s First Set of Interrogatories
to all Defendants and Request for Production of Documents,
Set One, to Conaco. (Id.)
Having
considered the arguments of the parties and the applicable
law, and for the reasons set forth herein, the Court GRANTS
IN PART and DENIES IN PART the Joint Motion addressing
Plaintiff’s responses to the First Set of
Interrogatories and First Set of Requests for Admission
served by Conaco (ECF No. 36); GRANTS IN PART and DENIES IN
PART the Joint Motion addressing Defendants’ response
to Plaintiff’s First Set of Interrogatories to all
Defendants and Request for Production of Documents, Set One,
to Conaco (ECF No. 38); and GRANTS Defendants’ motion
for entry of a protective order.[1]
I.
BACKGROUND
Plaintiff
commenced this action on July 22, 2015 by filing a complaint
against Defendants alleging copyright infringement. (ECF No.
1 (“Compl.”).) Plaintiff alleges he is a comedic
writer engaged in the entertainment industry. (Id.
at ¶ 14.) Plaintiff alleges that after he wrote and
published four jokes on his personal online blog and/or
Twitter account, each joke was subsequently featured in the
monologue segment of the “Conan” show.
(Id. at ¶¶ 15-21.)
Plaintiff
alleges that he published a joke regarding a Delta flight on
or about January 14, 2015 on his personal online blog
(“Joke #1”). (Id. at ¶ 15.)
Defendants used a joke about a Delta flight in the Conan show
monologue on January 14, 2015. (See ECF No. 36-1
(“Huskins Decl.”) at Exh. B at Definition K.)
Plaintiff further alleges that, on or about February 3, 2015,
he published a joke on his personal online blog and Twitter
account regarding Tom Brady (“Joke #2”). (Compl.
at ¶ 16.) Defendants used a joke about Tom Brady in the
Conan show monologue on February 4, 2015. (Huskins Decl. at
Exh. B at Definition M.) On or about February 17, 2015,
Plaintiff alleges he published a joke on his personal online
blog and Twitter account regarding the Washington Monument
(“Joke #3”). (Compl. at ¶ 18.) Defendants
used a joke regarding the Washington Monument in the Conan
show monologue on February 17, 2015. (Huskins Decl. at Exh. B
at Definition O.) Lastly, on or about June 9, 2015, Plaintiff
alleges he published a joke on his personal online blog and
Twitter account regarding Bruce Jenner (“Joke
#4”). (Compl. at ¶ 19.) Defendants used a joke
regarding Bruce Jenner in the Conan show monologue on June 9,
2015. (Huskins Decl. at Exh. B at Definition Q.)
Plaintiff
filed copyright applications for each of the jokes at issue,
deeming them “literary works, ” with the United
States Copyright Office on March 10, 2015, March 11, 2015,
June 26, 2015, and July 8, 2015. (Compl. at ¶ 23;
see also ECF No. 1-2.) These applications are
pending. (Id.)
Plaintiff
seeks a permanent injunction, actual damages, statutory
damages, increased statutory damages for willful
infringement, and profits attributable to the infringement of
Plaintiff’s copyrights pursuant to 17 U.S.C.
§§ 502(a) and 504. (Id. at pp. 6-7.)
Plaintiff also seeks attorney’s fees and costs and
punitive damages. (Id. at p. 7.)
II.
DISCUSSION
A.
Joint Motions for Determination of Discovery Disputes (ECF
Nos. 36, 38)
1.
Legal Standard
The
threshold requirement for discoverability under the Federal
Rules of Civil Procedure is whether the information sought is
“relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed R. Civ. P.
26(b)(1). Factors to consider include “the importance
of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.” Id. “Information within this
scope of discovery need not be admissible in evidence to be
discoverable.” Id.
The
relevance standard is commonly recognized as one that is
necessarily broad in scope. See Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v.
Taylor, 329 U.S. 495, 501 (1947)). However broadly
defined, relevancy is not without “ultimate and
necessary boundaries.” Hickman, 329 U.S. at
507. Accordingly, district courts have broad discretion to
determine relevancy for discovery purposes. District courts
also have broad discretion to limit discovery. For example, a
court may limit the scope of any discovery method if it
determines that “the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive” or the “proposed discovery is outside
the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P.
26(b)(2)(C)(i), (iii). “The party who resists discovery
has the burden to show discovery should not be allowed, and
has the burden of clarifying, explaining, and supporting its
objections.” Duran v. Cisco Sys., Inc., 258
F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v.
Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975);
Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D.
573, 575 (C.D. Cal. 2005)).
2.
Defendants’ Motion to Compel (ECF No. 36)
Defendants
seek an Order compelling Plaintiff to supplement his
responses to Interrogatories Nos. 11-12 in Conaco’s
First Set of Interrogatories, and deeming admitted Requests
for Admission 2-5 and 6-7 in Conaco’s First Set of
Requests for Admission.
a.
Interrogatory No. 11
In
Interrogatory No. 11, Conaco asks Plaintiff to identify every
instance in the last five years in which he sold any of his
original content and to identify the original content sold.
(Huskins Decl. at Exh. A.) Plaintiff initially objected to
this interrogatory. (Id. at Exh. C.) However,
Plaintiff later served a supplemental response which states
that he will “provide a separate document for
Attorney’s Eyes Only.” (ECF No. 36-2
(“Lorenzo Decl.”) at Exh. JJ; see also
Exh. GG.)
Although
Plaintiff’s counsel asserts in his declaration that he
provided Defendants with a supplemental response to
Interrogatory No. 11, and attached an email to the motion
reflecting this transmission, Defendants represent they did
not receive the supplemental response. (See Lorenzo
Decl. at Exh. GG; ECF No. 36 at p. 4, n. 1.) Accordingly,
Defendants’ position on Plaintiff’s supplemental
response is unknown. However, given the nature of the
response and the entry of a Protective Order, as discussed
below, with an Attorney’s Eyes Only (“AEO”)
provision, the Court will not compel a further response at
this time.
b.
Interrogatory No. 12
In
Interrogatory No. 12, Conaco asks Plaintiff to identify the
contact information for each purchaser, including name,
address, phone number and email address and the amount of
compensation Plaintiff received, for each instance identified
in Plaintiff’s response to Interrogatory No. 11.
(Huskins Decl. at Exh. A.) Plaintiff initially objected to
this interrogatory on the grounds it seeks information which
is not relevant, and seeks information that is private and
confidential and may violate the privacy rights or trade
secrets of the third parties who accepted submissions.
(Id. at Exh. C.) Plaintiff later served a
supplemental response, but did not change his objections.
(Lorenzo Decl. at Exh. JJ.)
Defendants
move to compel a response, arguing that information
concerning the purchase of Plaintiff’s content is
directly relevant to the quantification of the potential
damages at issue. (ECF No. 36 at p. 3.) Defendants further
argue that to the extent Plaintiff objects on privacy
grounds, the disclosure would be treated subject to the terms
of the Protective Order which contains an AEO provision.
(Id. at pp. 3-4.)
The
Court agrees with Defendants that the amount of compensation
Plaintiff received when he sold original content on other
occasions is relevant to the issue of damages. See Oracle
Corp. v. SAP AG, 765 F.3d 1081, 1087 (9th Cir. 2014).
However, Defendants have not demonstrated how the address,
phone number and email address of each purchaser is relevant
to the issue of damages. Accordingly, Plaintiff is ordered to
serve a supplemental response to Interrogatory No. 12 and
identify the name of each purchaser, as well as the amount of
compensation he received. However, the Court will not require
Plaintiff to provide the address, phone number, and email
address of each purchaser.
c.
Requests for Admission Nos. 2-5
Requests
for Admission Nos. 2-5 ask Plaintiff to admit that Jokes 1-4
are “not identical” to the jokes used in the
monologue for the Conan show, as those jokes are defined in
the “Definitions” section of the Requests for
Admission. (Huskins Decl. at Exh. B.) Plaintiff initially
objected to Requests for Admission 2-5 on the grounds they
are “vague and ambiguous” as to
“identical” and the response calls for a legal
conclusion. (Id. at Exh. D.) Plaintiff served
supplemental objections to Requests for Admission Nos. 2-5
making the same objections, but then responding:
“Without waiving said objections Respondent Denies and
is not denying on the basis of the objection.”
(Id. at Exh. H, at pp. 5-6.) Therefore, Plaintiff
has specifically denied each Request for Admission without
qualification.
Defendants
contend that because “it is objectively clear that the
Jokes At Issue are not literal, word-for-word copies of
Defendants’ Monologue Jokes, ” that any denial,
with or without qualification, is insufficient. (ECF No. 36
at pp. 5-6.) Defendants further argue that Plaintiff’s
supplemental responses are evasive and in bad faith, and
indicate a “clear disregard for the requirements and
purpose of Rule 36.” (Id. at pp. 5-6.)
Therefore, Defendants request that the Court deem these
requests admitted in accordance with Federal Rule of Civil
Procedure 36(a)(6). (Id. at p. 6.)
Federal
Rule of Civil Procedure 36(a) permits a party to serve any
other party with a written request to admit any matters
within the scope of Federal Rule of Civil Procedure 26(b)(1)
relating to facts. Fed.R.Civ.P. 36(a)(1)(A). “The
purpose of Rule 36(a) is to expedite trial by establishing
certain material facts as true and thus narrowing the range
of issues for trial.” Asea, Inc. v. Southern Pac.
Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981). In
response, a party may admit the fact, specifically deny it,
or state in detail why the party cannot truthfully admit or
deny. Fed.R.Civ.P. 36(a)(4). “A denial must fairly
respond to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a part
of a matter, the answer must specify the part admitted and
qualify or deny the rest.” Id. “[A]n
evasive or incomplete . . . answer . . . must be treated as a
failure to . . . answer.” Fed.R.Civ.P. 37(a)(4).
If the
requesting party contends that the response is insufficient,
the party may “move to determine the sufficiency of an
answer or objection.” Fed.R.Civ.P. 36(a)(6). If the
court finds that an answer does not comply with Rule 36,
“the court may order either that the matter is admitted
or that an amended answer be served.” Id.
Ordinarily, the court should “first order an amended
answer, and deem the matter admitted only if a sufficient
answer is not timely filed.” Asea, Inc., 669
F.2d at 1247. However, “this determination, like most
involved in the oversight of discovery, is left to the sound
discretion of the district judge.” Id.
Here,
the Court does not find Plaintiff’s responses to be
insufficient, nor does it find them evasive or to be in bad
faith. Defendants argue they made clear during the
parties’ meet and confer and in follow-up
correspondence that Plaintiff should understand
“identical” to mean a word-for-word copy. (ECF
No. 36 at p. 5, lines 15-17.) However, Conaco does not define
the word “identical’ in its Requests for
Admissions, and the Court does not find Plaintiff’s
response, absent the word being defined as
“word-for-word copy” in the Requests for
Admission, to be insufficient, evasive, or in bad faith.
(See Huskins Decl. at Exh. B, pp. 1-5.) Accordingly,
the Court denies Defendants’ request to deem admitted
Plaintiff’s responses to Requests for Admission Nos.
2-5.
d.
Requests for Admission Nos. 6-7
Request
for Admission No. 6 asks Plaintiff to admit that the
“only evidence” he has of Defendants’
access to Jokes 1-4 prior to Defendants’ alleged
infringement is his publication of the jokes on his Twitter
account, personal online blog, or Facebook Page. (Huskins
Decl. at Exh. B, p. 6.) Request for Admission No. 7 asks
Plaintiff to admit that he is not aware of any Defendant
following or viewing his personal online blog, Twitter
account, or Facebook page prior to February 4, 2015.
(Id.)
Plaintiff
initially responded to Request for Admission No. 6 as
follows: “Respondent refers to and incorporates by
reference its General Objections as though set forth in full
herein. Respondent further objects to this Request on the
grounds that it is compound, vague and ambiguous and that
Respondent cannot provide an intelligible response with [sic]
speculation. Without waiving said objections, Respondent
Denies.” (See id. at Exh. D, at p. 6.)
Plaintiff’s response to Request for Admission No. 7
similarly incorporated the General Objections and then
stated: “Respondent further ...