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Kaseberg v. Conaco, LLC

United States District Court, S.D. California

July 26, 2016

ROBERT ALEXANDER KASEBERG, Plaintiffs,
v.
CONACO, LLC, ET AL., Defendants.

          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 ...


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