*1 On February 12, 2016, the Court granted-in-part Plaintiff's Motion to Compel Discovery and ordered Defendant to produce documents sufficient to show the revenue, sales, and profits of The Stave from October 2012 to September 2015 in response to Plaintiff's Request for Production No. 1 and to provide a response to Plaintiff's interrogatory No. 2 limited to the period from October 2012 to September 2015.

Pursuant to the parties’ request, the Court held a telephonic hearing on February 26, 2016 to consider Defendant's request to modify the Court's February 12, 2016 Order to limit the production of financial records to the period from October 2012 to December 2014. The request was based on Defendant's contention that after Plaintiff informed Defendant that he owned the copyright to certain photographs on the defendant's website in September 2014, Defendant removed the photographs from the public portion of its website, thereby preventing public access to the photographs. Defendant claimed that Plaintiff was only able to access the photographs after the photographs were removed in September 2014 by using the Uniform Resource Locator (“URL”) assigned to each photograph but this information was not readily available to the public and would not have permitted public access to the photographs at issue. Therefore Defendant requested that the Court modify its previous order to preclude the production of financial information after December 2014. Plaintiff objected to Defendant's request to modify the dates for which financial records must be produced, contending that, while Defendant may have removed the photographs from its public website page, it did not completely remove the photographs from the website's server such that the photographs could still be accessed by the public with minimal effort through a search using the URL for the photographs or through a google search for images which would link to the website. Defendant conceded that the photographs were not removed from its website server until after the complaint was filed in June 2015, but maintained that the public would not have been able to access the photographs after they were removed in September 2014.

It is not necessary for the Court to rule on the merits of the parties’ respective claims regarding public access to the copyrighted photographs after Defendant received notice regarding the display of copyrighted photographs on its website and removed those images from its website. As set forth in the Court's February 12, 2016 Order, discovery is governed by Rule 26(b)(1) which permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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.” Applying this standard, the Court has already found that Plaintiff is entitled to seek production of documents “sufficient to show the revenue, sales, and profits of The Stave from October 2012 to September 2015” and that such records are relevant to Plaintiff's claims. Since the photographs at issue remained on the Defendant's website server and were potentially accessible until June 2015, Plaintiff is entitled to discovery of financial information through September 2015.

*2 Accordingly, Defendant's request for modification of the Court's February 12, 2016 order is DENIED.