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Kaseberg v. Conaco, LLC

United States District Court, S.D. California

March 16, 2017

ROBERT ALEXANDER KASEBERG, Plaintiff,
v.
CONACO, LLC, et al., Defendants.

          ORDER: (1) DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (ECF NO. 73); AND (2) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR RELIEF FROM CONFIDENTIALITY (ECF NO. 74)

          LOUISA S PORTER United States Magistrate Judge.

         On February 4, 2017, Plaintiff Robert Alexander Kaseberg (“Plaintiff”) and Defendant Conaco, LLC (“Conaco”) filed a Joint Motion for Reconsideration of Order Denying Discovery of Plaintiff's Requests for Production of Documents to Conaco Nos. 6-8 and to Compel Production of Documents from Defendant Conaco. (ECF No. 73.) Plaintiff seeks reconsideration of the Court's July 26, 2016 Order regarding a prior Joint Motion for Determination of Discovery Dispute. (See ECF Nos. 38, 47.) Conaco opposes. (ECF No. 73.) The same day, Plaintiff filed a Motion for Relief from Confidential and/or Attorneys' Eyes Only Designations for Depositions. (ECF No. 74.) Defendants Conaco, Conan O'Brien, Jeff Ross, and Mike Sweeney (collectively, “Defendants”) oppose the motion. (ECF No. 93.)

         Having considered the parties' submissions, the Court: (1) DENIES Plaintiff's Motion for Reconsideration; and (2) DENIES WITHOUT PREJUDICE Plaintiff's Motion for Relief from Confidential and/or Attorneys' Eyes Only Designations for Depositions.[1]

         I. BACKGROUND

         A. First Amended Complaint

         Plaintiff commenced this copyright infringement action on July 22, 2015. (ECF No. 1.) Plaintiff filed a First Amended Complaint (“FAC”) against Turner Broadcasting System, Inc., Time Warner, Inc., Conaco, Conan O'Brien, Jeff Ross, and Mike Sweeney on October 3, 2016. (ECF No. 58.) Plaintiff alleges he is a comedic writer engaged in the entertainment industry. (Id. at ¶ 14.) Plaintiff alleges that after he wrote and published five jokes on his personal online blog and/or Twitter account between December 2, 2014 and June 9, 2015, each joke was subsequently featured in the monologue segment of the “Conan” show. (Id. at ¶¶ 15-24.)

         Plaintiff alleges he filed copyright applications for each of the jokes at issue, deeming them “literary works, ” with the United States Copyright Office. (Id. at ¶ 26.) 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. 6-8.) Plaintiff also seeks attorney's fees and costs and punitive damages. (Id. at p. 7.)

         B. Request for Production of Documents and Things (Set One)

         Plaintiff served his Request for Production of Documents and Things (Set One) to Conaco on March 14, 2016. (ECF No. 73-1, Declaration of Jayson M. Lorenzo (“Lorenzo Decl.”) at ¶ 2, Exh. A.) In Request for Production No. 1, Plaintiff asks Conaco to produce any and all documents that “support, refute or in ANY way RELATE TO YOUR DENIAL of the allegations in the COMPLAINT.” (Id.) In Request for Production No. 2, Plaintiff asks Conaco to produce any and all documents that “support, refute or RELATE TO ANY and ALL affirmative defenses in your Answer.” (Id.)[2] In response, Conaco agreed to produce relevant and non-privileged documents responsive to these requests. (Id. at ¶ 3, Exh. B.)

         In Requests for Production Nos. 6-8, Plaintiff asks Conaco to produce “ANY and ALL DOCUMENTS, including any and all emails, involving” Josh Comers, Brian Kiley, and Rob Kutner “regarding any and all jokes” these individuals submitted for use on the Conan show monologue in the last three years. (Id. at ¶ 2, Exh. A.) Conaco objected to these requests, in part, as overbroad, unduly burdensome, and harassing to the extent the requests seek information which is not relevant to any party's claim or defense and is not proportional to the needs of the case. (Id. at ¶ 3, Exh. B.) Subject to these objections, Conaco agreed to produce all relevant and non-privileged documents within its possession concerning these three individuals and the “jokes at issue” after entry of a protective order. (Id.)

         On July 26, 2016, the Court denied Plaintiff's motion to compel further responses to Requests for Production Nos. 6-8, finding as follows:

The Court agrees with Defendants that Requests Nos. 6-8, as framed, are overly broad and unnecessarily burdensome. Although Plaintiff contends these requests are relevant to access, they are not specifically tailored to the issue of access, and thus are not likely to lead to relevant evidence. As Plaintiff has not made a specific showing that the burdens of production would be minimal, proportional to the needs of the case, and that the requested documents would lead to relevant evidence, the Court denies Plaintiff's motion to compel responses to Requests Nos. 6-8 beyond what Conaco has already agreed to produce. See Sorosky v. Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987) (affirming district court's denial of a motion to compel documents where the requests were unnecessarily burdensome and overly broad and there was no “specific showing that the burdens of production would be minimal and that the requested documents would lead to relevant evidence”); Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 438-39 (9th Cir. 1992) (same); see also Fed. R. Civ. P. 26(b)(1).

(ECF No. 47 at p. 17, lines 11-23.)

         On August 19, 2016, Conaco served a supplemental document production on Plaintiff which contained “joke submissions from Conaco writers for use on the Conan show which have nothing to do with the five jokes at issue in this case.” (Lorenzo Decl. at ¶ 7.) The joke submissions were dated August 3, 2015 and September 16, 2015. (Id. at ¶¶ 8, 9.) On September 23, 2016, Conaco produced additional documents containing joke submissions “submitted by Conaco writers for use on the Conan show which are allegedly similar to jokes posted on Plaintiff's Twitter page and allegedly submitted prior to Plaintiff publishing his jokes.” (Id. at ¶ 16.) Included in the production were “a few private email submissions dating back to September, 2013, which contained ‘you can do that' as part of the punch line.” (Id.) On January 18, 2017, Conaco produced another set of documents, which contained three more “e-mail jokes submitted by Conaco writers for use on the Conan show which are allegedly similar to the jokes posted on Plaintiff's Twitter page and allegedly submitted prior to Plaintiff publishing his jokes.” (Id. at ¶¶ 17, 18.) These emails were sent on October 3, 2016, October 25, 2016, and November 29, 2016. (ECF No. 73-2, Declaration of Nicholas Huskins (“Huskins Decl.”) at ¶¶ 8, 9.)

         Conaco claims these emails were produced pursuant to Federal Rule of Civil Procedure 26(e), [3] and are relevant to Defendants' asserted defenses, such as “Independent Creation, ” as well as Plaintiff's Requests for Production Nos. 1 and 2. (ECF No. 73 at 17-19; Lorenzo Decl. at ¶ 20, Exh. D.)

         C. Protective Order

         On June 3, 2016, defendants filed a Motion for Protective Order seeking the entry of a two-tier protective order that would allow the parties to designate certain information as “Confidential” or “Highly Confidential - Attorneys' Eyes Only.” (ECF No. 34.) On July 27, 2016, Judge Bartick issued such a Protective Order. (See ECF Nos. 47, 48.) Pursuant to the Protective Order, “Protected Material” includes documents or information designated as follows:

4(A). A Disclosing Party may designate as “Confidential” any information or documents produced in discovery, pursuant to legal process, or exchanged informally for purposes of settlement, if the person making the confidential designation reasonably believes, in good faith, that the material so designated contains or constitutes confidential, private, or proprietary information that is not otherwise known or available to the public and is entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure.
4(B). A Disclosing Party may designate as “Highly Confidential - Attorneys' Eyes Only” any information or documents produced in discovery, pursuant to legal process, or exchanged informally for purposes of settlement, if the person making the designation reasonably believes, in good faith, that the material so designated contains or constitutes highly confidential information, such as: trade secrets as defined under California Civil Code § 3426.1; financial information including but not limited to accounting records, revenues, costs, profits, confidential pricing, and overhead; information relating to a party's suppliers, distributors, or present or prospective customers including but not limited to names, addresses, phone numbers, and email addresses; business strategy including but not limited to future business plans; information of an extremely high degree of current commercial sensitivity and/or would provide a competitive advantage to its competitors if disclosed.

(ECF No. 48 at ¶¶ 4(A)-4(C).)

         Any portion of a deposition transcript that a Disclosing Party, “in good faith, reasonably believes to contain Protected Material, ” may be designated as Protected Material. (Id. at ¶ 7.) “The burden of proving that a document or testimony constitutes Protected Material is on the Disclosing Party. Prior to designating any material . . . the Disclosing Party shall make a bona fide determination that the material is, in fact, appropriately designated.” (Id. at ¶ 13.) Pursuant to the Protective Order,

[i]f a Receiving Party disagrees with the designation of any documents, the Receiving Party will so notify the Disclosing Party in writing, identifying the material subject to the objection and specifying in reasonable detail the reasons for the objection. Upon receipt of any such objection, the Parties shall promptly meet and confer in an effort to resolve their differences. The Parties shall work in good faith to resolve any disputes. If the disagreement cannot be resolved, the objecting Party may file, within a reasonable time, an application or motion with the Court for relief from designation of the material as Protected Material. The Party who designated the Protected Material shall have the burden of showing, on such application or motion, that the material being objected to was ...

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