Ross v. Dejarnetti
Ross v. Dejarnetti
2020 WL 12846846 (E.D. La. 2020)
May 27, 2020

Roby, Karen Wells,  United States Magistrate Judge

Self-collection
Audio
Text Messages
Possession Custody Control
ESI Protocol
Manner of Production
Video
Social Media
Failure to Produce
Protective Order
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Summary
The Court found that Defendant's responses to Plaintiff's Requests for Production Nos. 3, 4, 5, 6, and 7-14 were deficient and ordered him to supplement and amend his responses. The Court also ordered Defendant to tender his external hard drive to his attorney for review, to Bates Stamp all newly produced documentation, and to provide a full index with time codes to Plaintiff. The parties were also ordered to submit a proposed joint umbrella protective order and a proposed ESI Protocol.
FREDDIE ROSS, JR.
v.
WILBERTO DEJARNETTI
CIVIL ACTION NO. 18-11277
United States District Court, E.D. Louisiana
Filed May 27, 2020

Counsel

Timothy R.W. Kappel for Plaintiff.
Mark Edw. Andrews for Defendant.
Roby, Karen Wells, United States Magistrate Judge

MINUTE ENTRY & ORDER

*1 LAW CLERK: Destinee N. Andrews
 
COURT REPORTER: Sandra Minutillo
 
Before the Court is a Motion to Compel Discovery Responses (R. Doc. 26) filed by Plaintiff, Freddie Ross, Jr., seeking an order compelling Defendant Wilberto Dejarnetti to respond to Plaintiff's first set of interrogatories and requests for production. The motion is opposed. R. Doc. 35. The Court originally set the motion for April 15, 2020 at 11:00 a.m., but after preliminary examination of the documents and information produced in response to Plaintiff's request, the Court found the Defendant needed to supplement and amend his discovery responses to comply with the Federal Rules of Civil Procedure. R. Doc. 41. Plaintiff complains, notwithstanding Defendant's amendments and supplementation, that Defendant's discovery responses are still deficient and do not comply with the Federal Rules of Civil Procedure. R. Doc. 45. This motion was heard by video oral argument on May 27, 2020 at 11:00 a.m.
 
I. Background
On November 20, 2018, Plaintiff Freddie Ross, Jr. (“Ross”), known in the music and entertainment industry as “Big Freedia”, filed this copyright action seeking a declaration of rights in connection to certain sound recordings, musical compositions, and choreographic work. R. Doc. 1. Ross alleges that in 2014 he hired Dejarnetti to create stage choreography for some of Ross's songs, namely—“Just Be Free Intro”, “NO Bounce”, “Explode”, “Shake Session Medley”, “Dangerous”, “Best Beeleevah”, and “Drop” (Collectively “Choreographic Works”). Id. Dejarnetti ultimately became a character on Ross's reality television series, Queen of Bounce. Id.
 
In 2017, Ross and Dejarnetti suffered a falling-out. Id. Ross alleges the breakdown of this relationship was due to the outlandish demands of Dejarnetti, such as giving Dejarnetti credit as co-author and producer of the songs “Training Day”, “Best Beeleevah”, “You Already Know”, and $100 Bills” (Collectively “Musical Works”). Id. Ross further alleges Dejarnetti demanded $500 per month in continued use fees and that Dejarnetti refused to deliver certain music videos Ross had commissioned and paid for. Id.
 
Ross now seeks a declaration that Dejarnetti's mere presence at the recording studio does not confer Dejarnetti any authorships rights, title, or interest where he did not make any copyrightable contributions to the Musical Works. Id. Ross further alleges that while he worked with Dejarnetti and his dancers to create the Choreographic Works, their respective contributions merged into an inseparable and interdependent parts of a unitary whole. Id. As such, with regard to the Choreographic Work, Ross contends that, as a joint author, he is entitled to make use of the entire composition without Dejarnetti's permission or consent, and without further compensation. Id. Ross also alleges breach of contract based on Dejarnetti's failure to perform based on his refusal to deliver the edited, or unedited, video files. Id.
 
On May 2, 2020, Wilberto filed his answer and counterclaim alleging he “has been seeking payment for services rendered over a four-year period and has been seeking back-payments and continuing payments for continuing commercial use of his creative direction and choreography, as agreed from the inception of the relationship.” R. Doc. 44. Dejarnetti ultimately seeks credit for the services he has rendered and royalties allegedly stemming therefrom. Id.
 
*2 On October 30, 2019, the Court issued a scheduling order establishing the deadlines that govern this case. R. Doc. 21. On March 19, 2020, that scheduling order was amended. R. Doc. 33. On November 11, 2019, the Plaintiff propounded his first set of Interrogatories and Requests for Production on Defendant. R. Doc. 26-1. In December 2019, after Dejarnetti was granted an extension of time to provide answers, his counsel of record stated that they would not be making any objections. R. Doc. 26-4. Dejarnetti provided discovery responses on December 23, 2019. R. Doc. 26-1, p. 1. For various reasons, Plaintiff found those responses deficient. Id. After holding multiple Rule 37 discovery conferences, Defendant supplemented his responses on February 24, 2020. R. Doc. 26-1, p. 2. On April 14, 2020, the Court ordered Defendant “redo and amend his discovery responses by Bates Stamping each document and, by Bate Stamp reference, identify which documents are responsive to which individual requests for each of his discovery responses.” R. Doc. 41, p. 5.
 
Plaintiff now contends that, despite Dejarnetti's supplemental discovery responses, his discovery requests are still evasive and noncompliant with the Federal Rules of Civil Procedure. R. Doc. 45, p. 1. Specifically, Plaintiff complains of Defendant's response to Interrogatories Nos. 1, 2, 3, 4, and 5 and Requests for Production Nos. 3, 4, 5, 6, 7-12, 13, and 14. R. Doc. 45. The Court addressed Plaintiff's interrogatories in a separate order. R. Doc. 47. As such, the Court now addresses just the remaining issues pertaining to Plaintiff's Requests for Production Nos. 3, 4, 5, 6, and 7-14.
 
II. Standard of Review
Discovery of documents, electronically stored information, and things is governed by Federal Rule of Civil Procedure (“Rule”) 34. Rule 34 allows a party to request the production of “any designated documents or electronically stored information” or “any tangible things.” Id. Rule 34 allow a party to ask interrogatories and request production to the extent of Rule 26(b). Fed. R. Civ. P. 34(a).
 
Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense ...” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Id. Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of the case, considering the important 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.
 
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the proposed discovery is outside of the scope permitted under Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
 
III. Analysis
A. Requests for Production Nos. 3, 4, 5, and 6
Plaintiff's Request for Production No. 3. seeks Defendant “produce all documents (including, without limitation, all audio and video files) and communications which are, reflect, reference, or relate to the Defendant's creative contributions to the Plaintiff's choreographic works, or otherwise support, establish, refute, or bear upon the Defendant's response to Interrogatory No. 2.” R. Doc. 45-1, p. 13. Plaintiff's Request for Production No. 4 seeks Defendant “produce all documents (including, without limitation, all audio and video files) and communications which are, reflect, reference, or relate to the Defendant's creative contributions to the Plaintiff's musical works, or otherwise support, establish, refute, or bear upon the Defendant's response to Interrogatory No. 3.” Id. Plaintiff's Request for Production No. 5 seeks Defendant “produce all documents (including, without limitation, all audio and video files) and communications which are, reflect, reference, or relate to the Defendant's creative contributions to the Plaintiff's sound recordings, or otherwise support, establish, refute, or bear upon the Defendant's response to Interrogatory No. 4.” R. Doc. 45-1, p. 14-15. Plaintiff's Request for Production No. 6 seeks Defendant “produce all documents (including, without limitation, all audio and video files) and communications which are, reflect, reference, or relate to the Plaintiff's music videos.” Id. In response, Defendant produced an email thread, excerpts from the Big Freedia Queen of Bounce Fuze TV reality show, and two checks. Id. Defendant also contends no other responsive documents were identified after a reasonable search. Id.
 
*3 Plaintiff contends this answer is deficient where Defendant Dejarnetti's response fails to identify with particularity and Bates Stamps which documents are responsive to the request and does not provide an unequivocal statement that no other responsive documents exist. R. Doc. 45, p. 6-7.
 
As this Court previously found in its April 14, 2020 Order “documents should be organized and categorized in a manner that would make the material responsive to Requests for Production” to include Bates Stamps to sufficiently identify which document(s) are responsive to which request(s). R. Doc. 41 (citing Cubellis, Inc. v. LIFT (Louisiana Inst. of Film Tech.), No. CV 07-7959, 2009 WL 10680190, at *5 (Roby, M.J.) (E.D. La. Jan. 15, 2009) and U.S. ex rel. Stewart v. Louisiana Clinic, No. CIV.A. 99-1767, 2003 WL 21283944, at *6 (E.D. La. June 4, 2003)). As a result, in his answer Dejarnetti indicates that three groups of documents (email thread, video excerpts, and two checks) are responsive and further states those documents are attached as Exhibits D-4 through D-14. R. Doc. 45-1, p. 14. At this juncture, it is unclear what further identification Plaintiff would like. The Court is of the opinion that the Bates stamping and grouping of documents as identified in Defendant's response satisfies Defendant's burden of providing a responsive answer. As such, to the extent Plaintiff seeks any further clarity, that request is denied.
 
Notwithstanding, the Court is not persuaded that Defendant has undertaken his duty of due diligence with best efforts. It appears to the Court that Mr. Dejarnetti is doing the bare minimum with his attempts to comply with the Court's discovery orders. For example, at the hearing, counsel for the Defendant acknowledge that Dejarnetti is in possession of an external hard drive that has not been sent to him for review of responsive material. In addition, counsel for the Defendant acknowledged at the hearing that Dejarnetti has not undertaken to retrieve his electronic data from cloud storage service of his telephone of internet provider. While counsel for the Defendant explained that the Defendant lives a vagabond lifestyle and keeps neither a permanent residence or many material possessions, the Federal Rules of Civil Procedure contemplates “reasonable” possession as opposed to “actual” possession.
 
In addition, Defendant's argument that any information retrieved from the cloud would be duplicitous of the text messages, only yesterday, tendered erroneously presupposes that the only relevant information in Dejarnetti's cloud storage systems are text messages. The fact that no efforts have been made to access this information demonstrates that Defendant has not satisfied his onus of searching for responsive documents to these requests. The Defendant, here, has an obligation to more diligently search for responsive documents. Beyond these examples, the Court implores Defendants to check all social media platforms and for all types of files—audio, photographic, and video without exclusion. Defendant's duty includes checking all electronic platforms as well as searching through old files—hard and electronic—to determine whether responsive documents exist for the time period of 2014-2017, the period of their business relationship. As such, the Court finds Defendant's responses to these requests insufficient. The Court, therefore, orders Defendant to more thoroughly search for responsive documents and to tender his external hard drive to his attorney so that his counsel of record may make an assessment as to what files and documents are responsive to Plaintiff's requests for production.
 
*4 Finally, Plaintiff contends that these requests for production are deficient where Mr. Dejarnetti continues to withhold the “raw session recordings”, which he admits are in his possession. R. Doc. 45, p. 7. Plaintiff contends that the withholding of the session files is improper for both the sound recordings and music videos as they were made of particular issue in the Complaint. Plaintiff contends these files likely show the extent of Mr. Dejarnetti's purported contributions (if any) to the works identified in the Complaint, which are relevant to the question of authorship. R. Doc. 37, p. 9. In addition, Ross refutes any suggestion that the session files were not paid for, and further contends, irrespective of any payments, that the music videos are relevant to the scope and performance of the parties' contractual obligations and should be produced. R. Doc. 45, p. 8. Plaintiff finally contends that should Defendant be concerned of any public dissemination the proper avenue was for Defendant to seek a protective order that would designate the session files “confidential” and “for attorneys' eyes only”. Id.
 
Defendant, in opposition contends that the requests do not specifically ask for raw session recordings and that, in the absence of any contractual provision, raw sessions work is not deliverable, only final edited work is deliverable. R. Doc. 35, p. 6. Defendant further contends that Plaintiff's counsel wanted the raw video sessions, not for evidence in this case, but for someone else to edit down. Id. Defendant ultimately suggests that the request was a trick to turn over the raw session files. Id.
 
As an initial matter, the Court notes that no additional editing of the session files is permitted once a lawsuit is instituted concerning creative contributions and declaration of authorship rights. The condition of the digital files was in at the time of the commencement of the lawsuit is itself relevant evidence. Any alteration of those files may result in future action as a result of a decision pursuant to Federal Rule of Civil Procedure 37(e).
 
Secondly, the Court is of the opinion that, while these requests do not specifically seek the raw sessions files with pointed particularity, the raw session files would clearly fall into the purview of Plaintiff's requests. In addition, given the Complaint seeks a declaration of rights as the musical and choreographic works, it is hard to fathom how these session files would not be directly relevant to the issues implicated in this lawsuit. See, e.g., Francescatti v. Germanotta, No. 11 CV 5270, 2014 WL 2767231, at *2 n. 2 (N.D. Ill. June 17, 2014) (noting session files detailing the creation of the Stefani Joanne Germanotta a/k/a Lady Gaga Song from the first recordings through the song's release had been produced in response to discovery requests in copyright infringement case). As such, the Court grants Plaintiff's motion to the extent Requests for Production Nos. 3-6 seek both the audio and video raw session files as well as any other responsive documents found upon more diligent search.
 
Notwithstanding, given the nature of the case and the issues implicated, the Court finds it necessary that the parties utilize a protective order to protect what is essentially at issue, the allegedly copyrightable material, from public dissemination beyond the purposes of this case. As such, the Court orders parties to submit a proposed joint umbrella protective order to govern the discovery of confidential and public dissemination of sensitive materials in this case no later than ten (10) days from the signing of this order.
 
With consideration to the fact that Defendant's counsel informed the Court that two additional document groups were recently found and tendered to Plaintiff yesterday, the Court further orders that upon a more diligent search and production of the session files, that Defendant is to Bates Stamp all the newly produced documentation and supplement his discovery responses in a way that correlates the Bate Stamps to his individual discovery responses no later than thirty (30) days from the signing of this order if not already done.
 
B. Requests for Production Nos. 7-14
*5 Next, Plaintiff contends that Defendant's response to Request for Production Nos. 7-14 remains deficient where Dejarnetti does not reference the Bates Stamps in his corresponding answers. R. Doc. 45, p. 8. Plaintiff contends that time markers (minutes and seconds) of the reality television video excerpts be included and correlated to the particular request for production of documents. Id. Plaintiff also suggests given that video excerpts are unwieldy the Court should mark it as not responsive in its entirety. R. Doc. 45, p. 9. In response, Defendant identifies an email thread, video excerpts from the reality show, two checks, and a draft agreement dated March 15, 2014. Id. Defendant contends no other responsive documents were identified after a reasonable search. Id.
 
Here, the Court notes the video excerpts provided to the Plaintiff in response is eighteen minutes and seven seconds (18:07) long. The video excerpt can best described as a compilation or mash-up of numerous scenes taken from the reality show and compiled into one short video clip. It is unclear to the Court, after reviewing the footage, which scenes and sections are responsive to each request. The Court is of the opinion, given how relatively small the video excerpts are especially when in comparison to the entirety of the Queen of Bounce reality television series which ran for six seasons, that there is no great burden in requiring Defendant to identify with greater particularity (time markers indicating minutes and seconds) which part of the video excerpt is responsive to each request. Nevertheless, at the hearing, the counsel for the Defendant informed the Court that he spoke with Plaintiff prior to the hearing and intends to provide a full index with time codes to Plaintiff.
 
Notwithstanding any issue of time stamping, the Court does not find the excerpts from the reality television deficient in satisfaction of the discovery requests. Here, the Court is of the opinion where so much of this case is based in the musical and visual arts, no matter how the works themselves are described, that parties will have questions of interpretation. A question of interpretation, however, is not the same as a question of sufficiency. That the counsel may not exactly understand how the information produced relates exactly to the questions asked may be a matter better resolved through a different discovery device such as a deposition. As such, the Court finds the Defendant's production of excerpts from the reality television show Big Freedia: Queen of Bounce satisfies Plaintiff's request and no further production is necessary at this time. As such, the Court denies Plaintiff's motion to the extent it seeks the Court find Requests for Production Nos. 7-14 deficient.
 
Finally, the Court finds, given the nature of this case and the complexities involved therewith, that an ESI Protocol needs to be adopted. As such, the Court orders the parties to jointly submit to the Court for review a proposed ESI Protocol via its e-File box no later than fifteen (15) days from the signing of this order.
 

IV. Conclusion
Accordingly,
 
IT IS ORDERED that Motion to Compel Discovery Responses (R. Doc. 26) be GRANTED IN PART and DENIED IN PART.
 
IT IS FURTHER ORDERED that the motion is GRANTED to the extent Requests for Production Nos. 3, 4, 5, and 6 seek the raw video and audio session files, as well as any other responsive documents uncovered after a more diligent search of Defendant's external hard drive and other sources of information for the time period of 2014 to 2017.
 
IT IS FURTHER ORDERED that the motion is DENIED to the extent Requests for Production Nos. 3, 4, 5, and 7-14 seek any further clarity via additional Bates stamping and cross-referencing as well as with respect to finding Defendant's responses to Requests for Production Nos. 7-14 deficient.
 
*6 IT IS FURTHER ORDERED that Defendant shall supplement and amend his discovery responses in accordance with these instructions no later than thirty (30) days from the signing of this order.
 
IT IS FURTHER ORDERED that the parties shall submit a proposed joint umbrella protective order to govern the discovery of confidential and public dissemination of sensitive materials in this case no later than ten (10) days from the signing of this order
 
IT IS FURTHER ORDERED that parties shall jointly submit to the Court for review a proposed ESI Protocol no later than fifteen (15) days from the signing of this order.
 
New Orleans, Louisiana, this 27th day of May 2020.