Prolo v. Blackmon
Prolo v. Blackmon
2022 WL 2189643 (C.D. Cal. 2022)
March 25, 2022
Castillo, Pedro V., United States Magistrate Judge
Summary
The court granted Plaintiff's motion to compel Defendants to provide further responses to certain requests for production of documents and interrogatories, including documents related to the Subject Photographs and financial information. The court also ordered Defendants to affirmatively state in each response whether any documents have been withheld on the basis of an objection, and to provide all ESI, such as social media posts, communications concerning allegedly infringing materials, and financial information.
PHILIP PROLO, Plaintiff,
v.
DIAMANTE BLACKMON, p/k/a “DJ CARNAGE,” et al., Defendants
v.
DIAMANTE BLACKMON, p/k/a “DJ CARNAGE,” et al., Defendants
Case No. CV 21-5118 JFW (PVCx)
United States District Court, C.D. California
Filed March 25, 2022
Counsel
Frank Trechsel, Stephen M. Doniger, Scott A. Burroughs, Venice, CA, for Plaintiff.Sarah Michal Matz, Adelman Matz PC, Los Angeles, CA, Gary P. Adelman, Pro Hac Vice, Adelman Matz PC, New York, NY, for Defendants Diamante Blackmon, Carnagefestival, LLC.
Louis Arnold Russo, Pro Hac Vice, Alston and Bird LLP, New York, NY, for Defendants Medium Rare, LLC, Medium Rare Live, LLC.
Allen B. Grodsky, Grodsky Olecki and Puritsky LLP, Los Angeles, CA, for Defendants Tixr, Inc.
Castillo, Pedro V., United States Magistrate Judge
ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL SUPPLEMENTAL DISCOVERY RESPONSES BY DEFENDANTS DIAMANTE BLACKMON AND CARNAGEFESTIVAL, LLC; AND (2) DENYING THE PARTIES' RESPECTIVE REQUESTS FOR SANCTIONS
I. INTRODUCTION
*1 Plaintiff Philip Prolo has filed a Motion to Compel Defendants Diamante Blackmon, a/k/a “Carnage,” and his company, Carnagefestival, LLC (collectively, “Defendants”), to supplement their responses to certain requests for production of documents (“RFP”) and interrogatories. (“Motion” or “MTC,” Dkt. No. 84). The parties filed a Joint Stipulation pursuant to Local Rule 37-2, (“Jt. Stip.”), accompanied by the declaration of counsel Scott Alan Burroughs in support of the Motion, (“Burroughs Decl.,” Dkt. No. 84-1), and, in opposition to the Motion, the declarations of counsel Sarah Matz, (“Matz Decl.,” Dkt. No. 84-2), and Defendant Diamante Blackmon. (“Blackmon Decl.,” Dkt. No. 84-3). In the Joint Stipulation, each side requests sanctions under Rule 37(a)(5) for attorney's fees incurred in connection with the Motion. (Jt. Stip. at 61-63). Plaintiff later filed a Supplemental Memorandum as permitted by Local Rule 37-2.3. (“P Supp. Memo.,” Dkt. No. 86).
The Court took the matter under submission without a hearing. For the reasons stated below, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART. Defendants shall serve supplemental discovery responses as required by this Order no later than April 4, 2022. The parties' respective requests for sanctions are DENIED.
II. BACKGROUND FACTS
Plaintiff, a photographer, filed this action for copyright infringement on January 22, 2021. (“Compl.,” Dkt. No. 1). According to the Complaint, in March 2019, Plaintiff took photographs of Defendant Blackmon (known professionally as “Carnage”), a professional DJ, as part of a photoshoot. (Id. ¶ 13; Jt. Stip. at 1, 3). The parties dispute the terms of the engagement. Plaintiff asserts that he provided Defendants with a limited license to use the “Subject Photographs”[1] “solely for Spotify promotions, social media avatars/banners, and first party promotions and specifically clarified that any further uses of the Subject Photography would require further permissions and/or additional licensing from Plaintiff.” (Compl. ¶ 15). Defendants maintain that Plaintiff was hired by their regular photographer, Brian Perez, to assist him at the photoshoot. (Jt. Stip. at 4). According to Defendants, Perez told them that Plaintiff would be paid out of Perez's day rate, and that in exchange for the fee, Defendants would have permission to use “all photographs taken at the photoshoot for any purpose, whether by Perez or Plaintiff,” without restriction. (Id.).
Defendants used the photographs to advertise Blackmon's concerts in media posts and marketing materials, and on the cover of a recorded single. (Jt. Stip. at 2; see also Compl., Exh. B). While the parties dispute whether the photographs used by Defendants were taken by Plaintiff “or other individuals at the photoshoot,” (see Jt. Stip. at 4), Plaintiff maintains that the exploitation of the photographs breached Defendants' “limited license” for their use and infringed his copyright in the images. (Id. at 1).
*2 Plaintiff served his first sets of requests for production of documents and interrogatories on Defendants on October 12, 2021. (Burroughs Decl. ¶ 1). Defendants served written responses on December 17, 2021. (Id.). A protective order governing the production of confidential materials in this case issued on February 14, 2022. (Dkt. No. 80). Following the entry of the protective order, Defendants produced a first tranche of documents on February 18, 2022. (Burroughs Decl. ¶ 2). That initial production was followed by supplementary productions on March 1, 2022; March 2, 2022; March 4, 2022; and March 5, 2022. (Matz Decl. ¶ 9).
Counsel for the parties met and conferred about the adequacy of Defendants' discovery responses on February 11 and 23, 2022. On February 24, 2022, Plaintiff served a second set of production requests that specifically seeks documents concerning revenues and agreements related to Blackmon's performances at events that were advertised with the Disputed Photographs, and the distribution of the single title “Letting People Go.” (Id., Exh. B).[2] Responses to the second set of production requests are due by March 28, 2022. (Id. ¶ 8). The discovery cut-off in this case is April 4, 2022.[3] (See Scheduling and Case Management Order, Dkt. No. 76 at 35).
III. SCOPE OF PERMISSIBLE DISCOVERY
Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:
Parties may obtain 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. “The relevance standard is commonly recognized as one that is necessarily broad in scope in order to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Raya v. Barka, 2022 WL 686460, at *4 (S.D. Cal. Mar. 8, 2022) (quoting Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017); internal quotation marks omitted); see also Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017) (“Even after the 2015 amendments, courts continue to recognize that discovery relevance remains ‘broad’ in scope.”). “The proportionality inquiry [in Rule 26(b)(1)] focuses, at bottom, on analyzing the marginal utility of the discovery being sought.” V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 314 (D. Nev. 2019) (citing In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D. N.Y. 2016)).
*3 While the scope of permissible discovery may be broad, because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. The 2015 amendments to Rule 26 “were designed to protect against over-discovery and to emphasize judicial management of the discovery process, especially for those cases in which the parties do not themselves effectively manage discovery.” Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 308 (S.D. Ind. 2016); see also Davita HealthCare Partners, Inc. v. United States, 125 Fed. Cl. 394, 398 (2016) (the 2015 amendments to the Federal Rules “contribute to the overall goal of regulating the time and expense of litigation”). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw-Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted); see also DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”).
IV. REQUESTS FOR PRODUCTION OF DOCUMENTS
A. Standard
Federal Rule of Civil Procedure 34 requires production of responsive documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). “The phrase ‘possession, custody or control’ is in the disjunctive and only one of the numerated requirements need be met.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). “Control is defined as the legal right to obtain documents on demand.” United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).
Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1). “The test for reasonable particularity is whether the request places a party upon reasonable notice of what is called for and what is not.” Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (internal quotation marks omitted); see also Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649-50 (10th Cir. 2008) (“Though what qualifies as ‘reasonabl[y] particular’ surely depends at least in part on the circumstances of each case, a discovery request should be sufficiently definite and limited in scope that it can be said ‘to apprise a person of ordinary intelligence what documents are required and [to enable] the court ... to ascertain whether the requested documents have been produced.’ ”) (quoting Wright & Miller, 8A Federal Practice and Procedure § 2211, at 415).
Following a reasonable investigation to locate responsive materials, a responding party must serve a written response to each request either stating that it will produce copies of the documents requested or identifying the grounds for any objection. Fed. R. Civ. P. 34(b)(2)(B). The December 1, 2015 revisions to the Federal Rules amended Rule 34 to require that objections to requests for production be stated with specificity, and that the responding party affirmatively state whether any documents are being withheld pursuant to an objection. The 2015 Advisory Committee Notes to Rule 34 explain:
Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language from Rule 33(b)(4) [pertaining to interrogatories], eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection ... [¶] .... [T]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.
*4 Fed. R. Civ. P. 34, Advisory Committee Notes (2015 Amendment).
Where a requesting party challenges the adequacy of a production, the moving party must bear in mind that the court cannot order a party to produce documents that do not exist. A mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., Bethea v. Comcast, 218 F.R.D. 328, 329 (D. D.C. 2003) (requesting party's suspicion that responding party failed to produce responsive documents does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D. D.C. 2000) (a party's mere suspicion that its opponent must have documents that it claims not to have does not warrant granting a motion to compel). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (defendants' assertion that they are unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”); Ayala v. Tapia, 1991 WL 241873, at *2 (D. D.C. Nov. 1, 1991) (denying motion to compel where moving party could not identify documents that were withheld).
B. Disputed Production Requests
1. RFP Nos. 1, 10, 16, 17, 22 and 23 (Subject Photographs)
a. The Disputed Requests And Responses
RFP Nos. 1, 10, 16, 17, 22 and 23 seek production of documents relating to the “Subject Photographs”:
RFP No. 1: All DOCUMENTs which constitute, show, or reflect any of YOUR communications regarding any of the SUBJECT PHOTOGRAPHS with any other PERSON.
RFP No. 10: Exemplars of all media (including but not limited to print, audio-visual, and digital/online) which display any of the SUBJECT PHOTOGRAPHS.
RFP No. 16: All DOCUMENTS that refer or reflect to YOUR distribution of the SUBJECT PHOTOGRAPHS on any social media platform, including without limitation, Facebook and Twitter.
RFP No. 17: All electronically stored information, including without limitation, computer files and archived records containing images of any of the SUBJECT PHOTOGRAPHS.
RFP No. 22: All electronically-stored information that refers or reflects YOUR distribution, display, posting, or any other use of one or more of the SUBJECT PHOTOGRAPHS.
RFP No. 23: All DOCUMENTs that refer to or reflect YOUR communications with any third party in connection with the SUBJECT PHOTOGRAPHS or PLAINTIFF.
(See Jt. Stip. at 8-21).
The production requests were served separately on Blackmon and Carnagefestival, who both served identical responses. Each response begins with a statement of the same or similar objections in the same order, with minor variations.[4] Specifically, Defendants object to the requests on the following grounds: (1) attorney-client privilege, work product doctrine, or other “applicable privileges or protections” (RFP Nos. 1, 10, 16, 17, 22, and 23); (2) confidentiality, “prior to the entry of a protective order” (RFP Nos. 1, 16, 17, 22 and 23); (3) the definition of “Subject Photographs” as “photographic works owned by Plaintiff,” because ownership is disputed and by responding to the request, Defendant does not concede Plaintiff's ownership (RFP Nos. 1, 10, 16, 17, 22 and 23); (4) overbreadth as to requests for “all documents/media/electronically stored information” as they are likely to result in “cumulative and duplicative evidence and as such [are] not proportional to the needs of the case” (RFP Nos. 1, 10, 16, 17, 22 and 23); (5) the definition of “Your” to the extent that it can be construed to require Defendants to “search for and produce documents on behalf of person(s) other than Defendant,” which renders the request “vague, ambiguous, overbroad, burdensome, oppressive, compound, not proportional to the needs of the case” and violative of the attorney-client privilege and attorney work product doctrine (RFP Nos. 1, 16, 22 and 23); (6) to the extent the request seeks information and/or documents “not within the possession, custody, or control of Defendant” (RFP No. 10); (7) to the extent that the request seeks the production of documents that are not relevant and not proportional to the needs of the case (RFP Nos. 17 and 23); (8) to the extent the request “assumes actions that are disputed and by responding to this request does not concede that Defendant engaged in any such action” (RFP No. 22). (Jt. Stip. at 8-21).
*5 However, following the objections, each of the responses includes an identical statement affirming that Defendants will produce documents responsive to the requests:
Notwithstanding, subject to and without waiver of any of Defendant's foregoing Specific Objections, and specifically subject to Defendant's reasonable interpretation of the Request, Defendant is conducting a good faith search, and following the entry of a suitable protective order, Defendant will produce non-privileged responsive documents to the extent they exist, and are in Defendant's possession, custody and control. Defendant currently anticipates producing such documents, to the extent that they exist, within the next thirty (30) days. (RFP Nos. 1, 10, 16, 17, 22 and 23.)
(Id.).
b. The Parties' Contentions
Plaintiff asserts that Defendants' objections to the RFP on the grounds that they are vague, ambiguous, overbroad, burdensome, oppressive, compound, and not proportional to the needs of the case are impermissible boilerplate objections that fail to provide a sufficient explanation of their legal and/or factual basis. (Jt. Stip. at 21). Plaintiff also challenges Defendants' relevancy objections because he maintains that all of the production requests related to the “Subject Photographs” seek information that bears on Defendants' exploitation of the photographs at issue. (Id. at 22-23). Plaintiff contends that Defendants' confidentiality objections are “meritless” because none of the information requested is related to trade secrets or would violate third party privacy. (Id. at 23). Plaintiff also argues that Defendants' objection to the definition of “Subject Photographs” on the ground that it assumes Plaintiff's ownership of the photograph is improper because the definition is “sufficiently clear” for Defendants to respond to the request, particularly because Plaintiff provided exemplars of Defendants' allegedly infringing uses with the Complaint. (Id. at 24). Finally, Plaintiff states that even though the responses promised production of responsive documents, “to date, Defendants have failed to do so.” (Id.).
Defendants contend that none of their objections are boilerplate. (Id.). Furthermore, Defendants state they explained to Plaintiff's counsel when they met and conferred that no documents have been withheld on the ground of confidentiality following the entry of the protective order, and no documents have been withheld based on Plaintiff's definition of Subject Photographs, as Defendants were merely clarifying in their objections that production of documents seeking information about the Subject Photographs was not an admission of Plaintiff's ownership. (Id. at 24-25). Finally, Defendants contend that Plaintiff's motion to compel further responses to these requests should be denied because “there is nothing left to compel” now that Defendants have completed their supplemental productions. (Id. at 25).
In his Supplemental Memorandum, Plaintiff challenges Defendants' assertion that all responsive documents have been produced. Plaintiff claims that he has, through his own investigation of Defendants' social media accounts, obtained screenshots displaying marketing materials for various events that contain the Subject Photographs.[5] (P Supp. Memo. at 1). However, Plaintiff claims that Defendants “have failed to provide any documents reflecting any social media posts,” even though such documents are plainly within Defendants' possession, custody and control. (Id.). Furthermore, Plaintiff states that Defendants have produced communications concerning only “a handful” of allegedly infringing materials, “but clearly not all of them,” and have not produced communications from third parties that transmitted to Defendants the allegedly infringing materials to post on Defendants' website. (Id. at 2). While Plaintiff concedes that Defendants have produced electronically stored versions of the Subject Photographs themselves, he insists that “it is nearly impossible that the marketing materials themselves, or communications about them[,] would not be within his possession for production.” (Id. at 2). As such, Plaintiff “questions the completeness of Defendants' production” and asks that Defendants be ordered to provide all responsive materials in their possession. (Id.).
c. Ruling
*6 Here, Plaintiff asserts that Defendants have failed to provide any documents reflecting any social media posts, even though such documents are “plainly within Defendant's possession, custody or control.” (P Supp Memo. at 1). Plaintiff's argument that the materials exist would be stronger if he had attached the screenshots displaying the marketing materials that contain the photographs to the instant motion. Mere speculation that a document must exist is not a valid ground for granting a motion to compel. Bethea, 218 F.R.D. at 329; Alexander, 194 F.R.D. at 311. However, in the digital age that we live in, where social media and electronic communications are a convenient, frequently preferred, method of sharing and exchanging communications and information, the possibility that responsive materials may exist in Defendants' possession, custody or control related to the screenshots that Plaintiff claims to have obtained does not appear merely speculative. Furthermore, Defendants' responses to the RFPs did not affirmatively state whether any documents are being withheld pursuant to Defendants' objections. For these reasons, the MTC is GRANTED, and Defendants are ordered to serve supplemental responses to RFPs 1, 10, 16, 17, 22 and 23 concerning the Subject Photographs, including a statement in each response affirmatively stating whether any documents have been withheld on the basis of an objection. If no further documents responsive to the RFPs exist in Defendants' possession, custody, or control beyond those that have already been produced, the response shall so state.
2. RFP Nos. 13, 19 and 20 (Financial Information)
a. The Disputed Requests And Responses
RFP Nos. 13, 19, and 20 seek financial information:
RFP No. 13: All DOCUMENTs which constitute, show, or reflect the total revenues YOU generated in connection with any of the SUBJECT PHOTOGRAPHS including but not limited to revenues generated through advertising in connection with the SUBJECT POSTS.
RFP No. 19: YOUR annual financial statements from 2019 to the present.
RFP No. 20: YOUR annual profit and loss ledgers from 2019 to the present.
(Jt. Stip. at 26-31).
Defendants' response to RFP No. 13 begins with a lengthy statement of objections, followed by a statement that Defendants do not have any responsive documents in their possession, custody or control. Specifically, Defendants object to RFP No. 13 on the following grounds: (1) attorney-client privilege, work product doctrine, or other “applicable privileges or protections”; (2) the definition of “Subject Photographs” as “photographic works owned by Plaintiff”; (3) the definition of “Your” to the extent that it can be construed to require Defendants to “search for and produce documents on behalf of person(s) other than Defendant”; and (4) because RFP No. 13 “assumes revenues were generated by Defendant from photographs or posts, which is disputed.” The response concludes:
Notwithstanding, subject to and without waiver of any of Defendant's foregoing Specific Objections, and specifically subject to Defendant's reasonable interpretation of this Request, Defendant is not in possession, custody or control of documents responsive to this Request.
(Jt. Stip. at 27-28).
Defendants object to RFP Nos. 19 (annual financial statements) and 20 (profit and loss ledgers) in their entirety in identical terms, except for the identification of the documents requested:
Defendant objects to the Request to the extent that it seeks confidential information without a proper purpose. Defendant also objects to Plaintiff's definition of YOUR to the extent that the breadth of the defined term as used in the Requests seeks to have Defendant search for and produce documents on behalf of person(s) other than Defendant and as such also makes the request vague, ambiguous, overbroad, burdensome, oppressive, compound, not proportional to the needs of the case in violation of F.R.C.P. 26(b)(1), and violative of the attorney-client privilege and the attorney work product doctrine. Defendant objects to the Request on the grounds that it seeks the production of documents that are not relevant to any party's claims or defenses and are not proportional to the needs of the case, considering the factors outlined in Fed. R. Civ. P. 26(b)(1). Defendant's annual financial statements [profit and loss ledgers] from 2019 to present contain highly sensitive information, which is unrelated to any alleged actual damages or disgorgement of profits attributable to an alleged infringement pursuant to 17 U.S.C. § 504(b).
*7 On the basis of the foregoing specific objections, Defendant is not producing any documents that are responsive to this Request.
(Jt. Stip. at 28-31).
b. The Parties' Contentions
Plaintiff challenges Defendants' “boilerplate” and confidentiality objections to RFP Nos. 13, 19 and 20 largely on the same grounds as he did to Defendants' responses to RFP Nos. 1, 10, 16, 17, 22 and 23. (Jt. Stip. at 31-34). Plaintiff more specifically asserts that Defendants' contention that they do not have documents responsive to RFP No. 13, which seeks total revenues generated in connection with the Subject Photographs, simply “cannot be accurate” and appears based on Defendants' improperly restrictive interpretation of the documents sought by the request. (Jt. Stip. at 33). According to Plaintiff, Defendants construe RFP No. 13 to seek only direct profit information, of which there is allegedly “little to none.” (Id.). However, the request actually seeks documents reflecting revenues generated “in connection with” any of the Subject Photographs, which Plaintiff argues clearly encompasses not only “direct” revenues, but also “indirect” revenues. (Id.) (emphasis added). According to Plaintiff, “[i]t is clear that documents reflecting Defendants' revenue from the Defendants' performances, appearances, music distribution, and brand should exist in the ordinary course and are responsive to this request because they are ‘in connection with’ the exploitation of the Subject Photographs.” (Id.).
Defendants contend as a preliminary matter that Plaintiff is not entitled to discovery concerning their purported “indirect” profits, i.e., additional revenue generated by use of the Subject Photographs through increased concert attendance, record sales, brand value, etc., because RFP No. 13 does not request it. (Jt. Stip. at 38). Defendants note that RFP No. 13 seeks documents concerning their “total revenues” generated “in connection with” the Subject Photographs, “including but not limited to revenues generated through advertising in connection with the SUBJECT POSTS.” (See id. at 38-39). Defendants state that they have never generated revenue through the Subject Photographs because they did not license the photographs or sell them to others, and they do not receive ad revenue from the Subject Posts. (Id. at 39). Because RFP No. 13 “clearly only seeks direct profits that were generated from alleged use of the photos at issue,” Defendants state that they have no responsive documents responsive to the request. (Id.). According to Defendants, the performance revenue and royalty information that Plaintiff now requests is “completely different information” that requires new requests, and they note that to that end, following the parties' conference of counsel, Plaintiff served a second set of document demands expressly seeking that information. (Id.) (citing Matz Decl. ¶ 8 & Exh. B).
However, even if RFP No. 13 could be construed to request information about “indirect” revenue, Defendants argue that Plaintiff would still not be entitled to the information because he has “failed to show a causal nexus or any non-speculative theory that would make [the discovery] ‘relevant’ or proportional to the needs of this case.” (Id. at 38). Defendants emphasize that Plaintiff bears the burden of establishing a causal nexus between the alleged infringement and a defendant's profits. (Id. at 38). According to Defendants, “this is a burden that Plaintiff must meet for discovery or to be entitled to them later.” (Id.) (citing Mackie v. Rieser, 296 F.3d 909, 914-15 (9th Cir. 2002); Huang v. Big Data Supply Inc., 2021 WL 4816827, at *2 (C.D. Cal. Aug. 12, 2021). Defendants maintain that Plaintiff has failed to show the relevance of the requested information because he has not offered “any theory as to how moneys received by Defendants for the performance of DJ services, i.e., the provisioning of live music to an audience, has any causal nexus to alleged use of a photo in an advertisement.” (Jt. Stip. at 40). Defendants assert that “[t]o the extent that [Blackmon's] performance services drive ticket goers to an event[,] it is to see him play and engage in the live experience -- but it has no connection to a photograph of him ....” (Id.). Similarly, Defendants argue that Plaintiff cannot show a nexus between the Subject Photographs and the revenues from Defendants' single as there is no non-speculative correlation between revenue from music streaming and/or downloads and the inclusion of one of the Subject Photographs as one of four photographs, surrounded by other graphics, on the single's cover. (Id. at 41).
*8 Defendants maintain that “gross profits without any causal nexus to infringement are deemed speculative and [plaintiffs] are regularly denied recovery of the same.” (Id. at 40). As an example, Defendants rely on Mackie v. Rieser, in which plaintiff sought damages for the use of his artwork in an orchestra's promotional brochure based on revenue generated from the musical series the brochure advertised. (Id. at 40) (citing Mackie, 296 F.3d at 916). On summary judgment, the trial court found that plaintiff had not articulated a non-speculative correlation between the inclusion of his artwork and the revenue generated by the musical series because there were “virtually endless permutations to account for an individual's decision to subscribe to the Pops series, reasons that have nothing to do with the artwork in question.” (Jt. Stip. at 40) (quoting Mackie, 296 F.3d at 916). Defendants insist that the relevancy and proportionality of the “indirect” revenue discovery Plaintiff claims to seek in RFP No. 13 “is not an issue for later,” as Rule 26(b)(1) requires the Court to conduct a balancing test, “prior to compelling any production of documents.” (Id. at 41).
With respect to RFP Nos. 19 and 20, which seek financial statements and gross profit and loss information for all of Defendants' income from 2019 to the present, Defendants observe that Plaintiff did not even try to offer any theory in the Joint Stipulation as to how their gross revenue, from any source, is attributable to the alleged infringement. (Id. at 42). Defendants assert that Blackmon “has hundreds of shows every year, many other releases, and many other revenue streams that have no alleged connection to the infringement here.” (Id. at 43). Finally, Defendants contend that the time frame for this discovery is disproportionate, as Plaintiff does not allege ongoing infringement past 2020. (Id.).
In his Supplemental Memorandum, Plaintiff states:
The heart of the parties' dispute is whether or not revenue information regarding indirect profits like the revenue generated from the live events marketed using the Subject Photographs, or revenue generated from the sale and streams of the single released with the Subject Photograph on [its] cover, or broader financial information like financial statements, or profit and loss ledgers are discoverable.
The answer is a resounding yes.
(P Supp. Memo. at 3). Plaintiff argues that indirect profits are recoverable once he establishes a sufficient causal nexus between the infringement and Defendants' profits, and that information that will enable him to prove (or disprove) the existence of a causal nexus is discoverable, whether or not he ultimately succeeds in proving the nexus at trial. (Id.) (citing Sys. Am., Inc. v. Rockwell Software, Inc., 2007 WL 1593219, at *2 (N.D. Cal. June 1, 2007). Plaintiff further notes that Defendants' reliance on Mackie is misplaced because that case did not concern a discovery dispute, but rather, a ruling on summary judgment, after discovery had been completed. (P Supp. Memo. at 4). Plaintiff additionally contends that the information requested by RFP Nos. 13, 19 and 20 would not be burdensome as Defendants “are not unsophisticated entities” and that kind of information is regularly maintained in the ordinary course of business. (Id.).
c. Ruling
The Court finds that RFP No. 13's request for documents reflecting revenues obtained “in connection with” the Subject Photographs is broad enough to encompass both direct and indirect profits. To the extent that Defendants perceived any ambiguity in the RFP, it is the function of the meet and confer process to provide a forum for the parties to address any questions and, if necessary, refine the scope of the request so that the responding party has clear notice of the scope of the documents sought by the requesting party. The Court is not persuaded by Defendants' contention that Plaintiff's service of the second set of requests for production, which expressly requested documents reflecting concert revenues and streaming royalties, is an admission that RFP No. 13 did not seek such materials. The second set of production requests was served immediately after a conference of counsel in which Defendants presumably made clear their refusal to modify their interpretation of RFP No. 13. Plaintiff could in good faith maintain that RFP No. 13 sought information about indirect profits and still serve a redundant set of more specific requests to ensure that the requested materials would be produced in the event that the Court disagreed with Plaintiff's position on the scope of the request.
*9 The heart of the issue is whether Defendants should be required to produce documents related to “indirect profits” gained by the use of the Subject Photographs. To determine exactly what an “indirect profit” from the use of a photograph is, the Court must examine the context of the litigation, specifically the allegations in the complaint. Plaintiff asserts that Defendants have “obtained direct and indirect profits they would not otherwise have realized but for their infringement...” (Complaint ¶ 24, emphasis added) and that they “profited from the illegal reproduction and distribution of the Subject Photography,” including by “encouraging the publication of the Subject Photography on third-party websites and social media sites, distributing the Subject Photography to third-parties for further publication, and embodying the Subject Photography on an album cover for master sound recordings...” (Id. ¶ 27). Thus, the requested indirect profit information meets the relevancy threshold. But the question remains whether there exists a sufficient “causal link” between the inclusion of a photograph on an advertisement, album cover, or concert appearance promotion to provide a nexus with any revenues gained from the sale of a recording or live event profits. In Sys. Am. v. Rockwell Software, the Court held, in a situation similar to the one presented here, that plaintiff was entitled to obtain sales information about defendant's sales of a product other than the one allegedly being infringed to show “indirect” profits because “customers might very well choose to acquire ‘floor level’ products now, with the intention of purchasing an XML Enterprise server later”. (Id. at 2). The logic of Sys. Am. applies here The Court disagrees with Defendants' contention that Plaintiff must provide evidence now of a causal link between the allegedly improper use of a photograph and Defendants' indirect profits to be entitled to obtain discovery about indirect profits, as it would be unfair to require Plaintiff to establish the existence and scope of a “causal link” before he ever receives the information which may be relevant to proving it. Furthermore, the Court finds that requiring a response to RFP No. 13 as it relates to indirect profits is proportional to the needs of the case and is not unduly burdensome to Defendants. As such, the motion to compel a further response to RFP No. 13 is GRANTED.
As to RFP Nos. 19 and 20, which seek financial statements and gross profit and loss information for all of Defendants' income from 2019 to the present, the Court finds that these requests are overbroad and not sufficiently tied to the issues in this case. See Sys. Am., 2007 WL 1593219, at *3 (allowing discovery of indirect profits information but denying motion to compel production “of annual and quarterly balance sheets, income statements, and profit and loss statements, without any limitation connecting the information to either the accused product or any of the arguably related products” on relevancy grounds). For this reason, the motion to compel further responses to RFP Nos. 19 and 20 is DENIED.
V. INTERROGATORIES
A. Standard
Rule 33 governs the use of interrogatories as a discovery device in federal courts. The purpose of interrogatories is “to facilitate trial preparation, to provide facts, to narrow the issues, and to reduce the chance of surprise.” Rickles, Inc. v. Frances Denney Corp., 508 F. Supp. 4, 7 n.1 (D. Mass. 1980); see also Citibank, N.A. v. Savage (In re Savage), 303 B.R. 766, 773 (Bankr. D. Md. 2003) (“The purpose of interrogatories is to allow the parties to prepare for trial and inform the parties what evidence they must meet.”); Essex Ins. Co. v. Interstate Fire & Safety Equip. Co./Interstate Fire & Safety Cleaning Co., 263 F.R.D. 72, 75 (D. Conn. 2009) (“One important purpose of interrogatories is to ‘obtain information necessary to use other discovery devices effectively, including identifying witnesses whose depositions should be taken ....’ ”) (quoting 7 James Wm. Moore et al., Moore's Federal Practice ¶ 33.03 (3d ed. 2004)).
Overly broad and unduly burdensome interrogatories “are an abuse of the discovery process” and are routinely denied. See, e.g., Lucero v. Valdez, 240 F.R.D. 591, 594 (D. N.M. 2007) (interrogatories requiring responding party to state “each and every fact” supporting the party's contentions impermissibly overbroad); see also Rivera v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (noting generally that district courts “need not condone the use of discovery to engage in ‘fishing expedition[s]’ ”). At the same time, parties have “an obligation to construe ... discovery requests in a reasonable manner.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007). Accordingly, “[r]espondents should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories.” Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 310 (D. Kan. 1996); see also McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....”) (internal quotation marks omitted); King-Hardy v. Bloomfield Board of Education, 2002 WL 32506294, at *5 (D. Conn. Dec. 8, 2002) (responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity).
*10 A responding party must respond to interrogatories under oath and to the fullest extent possible. Fed. R. Civ. P. 33(b)(3). “The answers to interrogatories must be responsive, full, complete and unevasive.” Continental Ill. Nat'l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 684 (D. Kan. 1991) (internal citation and quotation marks omitted); see also Chubb Integrated Systems Ltd. v. National Bank of Washington, 103 F.R.D. 52, 61 (D. D.C. 1984) (“We remind the parties that they have a duty to provide true, explicit, responsive, complete and candid answers to interrogatories.”). A party answering interrogatories cannot limit its answers to matters within its own knowledge and ignore information reasonably available to it or under its control. Essex Builders Group, Inc. v. Amerisure Insurance Co., 230 F.R.D. 682, 685 (M.D. Fla. 2005). While a responding party is not generally required to conduct extensive research to answer an interrogatory, a reasonable effort to respond must be made. Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013). “If a party is unable to supply the requested information, the party may not simply refuse to answer, but must state under oath that he is unable to provide the information and set forth the efforts he used to obtain the information.” Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996) (internal quotation marks and citation omitted).
Objections to interrogatories must be stated with specificity. Fed. R. Civ. P. 33(b)(4); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Boilerplate objections of any type, including assertions of attorney-client privilege or the work product doctrine, are improper in federal court. See, e.g., A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (“[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper -- especially when a party fails to submit any evidentiary declarations supporting such objections.... Similarly, boilerplate relevancy objections, without setting forth any explanation or argument why the requested documents are not relevant, are improper.”); Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 379 (C.D. Cal. 2009) (“[U]nexplained and unsupported boilerplate objections are improper.”); Burlington Northern & Santa Fe Ry. Co. v. United States Dist. Court, 408 F.3d 1142, 1147 (9th Cir. 2005) (boilerplate privilege assertions are ineffective, and a failure to properly assert a privilege may “waive or otherwise abandon the privilege”).
In 1993, Rule 33(a)(1) was revised to set a presumptive limit of twenty-five on the number of interrogatories each party may propound. Safeco of America v. Rawstron, 181 F.R.D. 441, 443 (C.D. Cal. 1998). As revised, the Rule provides: “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1) (emphasis added). Although Rule 33(a)(1) states that “discrete subparts” should be counted as separate interrogatories, it does not define that term. In some instances, requests for specific information within an interrogatory may not necessarily constitute a “discrete subpart” for purposes of Rule 33(a)'s numerical limit, but may properly be considered part of a single interrogatory. As the Advisory Committee explained: “Parties cannot evade [Rule 33's] presumptive limitation through the device of joining as ‘subparts’ questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” Fed. R. Civ. P. 33(a)(1) advisory committee note (1993 amendments). It is well accepted that subparts count collectively as one interrogatory if “they are logically or factually subsumed within and necessarily related to the primary question.” Safeco of America, 181 F.R.D. at 445 (quoting Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685 (D. Nev. 1997) (internal quotation marks omitted). As explained in Kendall,
*11 Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions should be counted as separate interrogatories, notwithstanding [that] they are joined by a conjunctive word and may be related.
Id.
“Determining whether an interrogatory counts as a separate question requires a pragmatic approach.” Waterbury v. Scribner, 2008 WL 2018432, at *2 (E.D. Cal. May 8, 2008). “[O]nce a subpart of an interrogatory introduces a line of inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that precedes it, the subpart must be considered a separate interrogatory no matter how it is designated.” Willingham v. Ashcroft, 226 F.R.D. 57, 59 (D. D.C. 2005).
B. Disputed Interrogatories: Interrogatory Nos. 10, 21, 22, 23 and 25
1. The Disputed Interrogatories And Responses
All of the disputed interrogatories seek information about Defendants' revenues:
INTERROGATORY NO. 10: State the total revenues received by YOU for the years 2019, 2020, and 2021.
INTERROGATORY NO. 21: State and itemize the total revenues YOU received in connection with users clicking any third-party links set forth in the SUBJECT POSTS.
INTERROGATORY NO. 22: State and itemize the total revenues that YOU received in connection with the publication or distribution of the SUBJECT POSTS.
INTERROGATORY NO. 23: State and itemize the total revenues that YOU received in connection with the publication or distribution of the SUBJECT PHOTOGRAPHS.
INTERROGATORY NO. 25: Detail and describe how the revenues YOU received in connection with the SUBJECT POSTS were calculated, including but not limited to revenue per page view and total advertising revenue derived during the time YOU were exhibiting the SUBJECT POSTS.
(Jt. Stip. at 43-49).
Defendants objected to each disputed interrogatory in its entirety, mostly by reasserting objections asserted in response to the production requests seeking the same or similar information. Specifically, Defendants object to the Interrogatories on the grounds that: (1) the definition of YOU is overbroad (Int. Nos. 10, 21, 22, 23, 25); (2) the Interrogatory seeks irrelevant information (Int. No. 25), “as Defendant's total revenue for the years 2019, 2020, and 2021 has no relevance any damages that Plaintiff could claim under 17 U.S.C. § 504(b)” (Int. No. 10); (3) to the extent that the Interrogatory assumes actions that are disputed (Int. Nos. 21, 22, 23, 25); (4) to the extent that the Interrogatory assumes Defendants received revenues in connection with the Subject Posts, (Int. No. 25), or specifically in connection with third-party links to the Subject Posts, (Int. Nos. 21 and 22), or that they received revenues from the Subject Photographs (Int. No. 23); (5) to the extent that the Interrogatory seeks information not within the possession, custody or control of Defendants (Int. No. 21); (6) the terms “publication” and “distribution” are vague as “they are capable of more than one interpretation” (Int. Nos. 22 and 23); (7) the definition of Subject Photographs assumes Plaintiff's ownership of the same, which is disputed (Int. No. 23); and (8) the Interrogatory exceeds the number of allowed interrogatories under Rule 33 due to impermissible sub-parts [in earlier interrogatories] (Int. Nos. 22, 23 and 25). (Jt. Stip. at 43-49).
2. The Parties' Contentions
*12 Plaintiff's contentions with respect to Interrogatory Nos. 10, 21, 22, 23 and 25 largely echo his arguments regarding Defendants' objections to the requests for production seeking financial information: Plaintiff maintains that Defendants' objections are boilerplate and unfounded, and that he is entitled to discovery about Defendants' “indirect” revenues for the same reasons stated above. (Jt. Stip. at 49-51). Plaintiff specifically rejects Defendants' contention that Interrogatory Nos. 22, 23 and 25 exceed the number of permissible interrogatories because “an interrogatory asking for several segments of information relating to the same topic counts as one interrogatory.” (Id. at 52) (citing Safeco of America v. Rawstrom, 181 F.R.D. 441, 445 (C.D. Cal. 1998). For example, Interrogatory No. 1 asks Defendants to identify all witnesses with knowledge concerning Defendants' creation of the Subject Posts, including persons with knowledge of how Defendants' obtained the Subject Posts and distributed them. Plaintiff states that Interrogatory No. 1 merely seeks the identity of “witnesses with information relevant to the issues in the case and should not be considered more than one interrogatory.” (Jt. Stip. at 52). Similarly, Interrogatory No. 3 asks Defendants to describe the creation of the Subject Posts, including the “incorporation” of the Subject Posts and “the manner in which the posts were created, the date of their creation, the date of their publication, and the date they were removed from YOUR website(s).” (Id.). According to Plaintiff, “this interrogatory elicits information regarding the creation and publication of the Subject Posts and revolves around one central topic ....” (Id. at 52-53).
Defendants contend, as they did in connection with the production requests, that their objections were not boilerplate or otherwise improper. (Id. at 53-54). Defendants contend that Interrogatory No. 10, which seeks total revenues for the years 2019, 2020, and 2021, seeks irrelevant information that is not proportional to the case. (Id. at 54-55). Defendants repeat that Plaintiff has not articulated a causal nexus between indirect profits and the alleged infringement, and where “the claimant fails to offer anything more than mere speculation as to the causal connection between infringement and claimed revenues, profits are properly denied.” (Id. at 56). As for Interrogatory No. 21, which seeks information about Defendants' revenues “received in connection with users clicking any third-party links set forth in the SUBJECT POSTS,” Defendants state that they have no way to respond to this request because they do not have any click-through data. (Id. at 58). Defendants also dispute that they received any revenues in connection with the publication or distribution of the Subject Posts or Subject Photographs, “and as such cannot respond to Interrogatories Nos. 22, 23 and 25.” (Id.). Defendants further contend that Plaintiff is attempting to re-construe these interrogatories to call for information about indirect revenues, which they do not, and even if they could be so construed, Plaintiff has failed to show a causal nexus. (Id. at 59-60).
As for their objection that Interrogatories 22, 23, 25 exceed the number of allowable interrogatories due to their subparts, Defendants assert that Interrogatory No. 1 asks for information about of the creation of the Subject Posts, including obtainment, distribution and approval, which are three “separate and distinct concepts,” and that Interrogatory No. 3 asks for information describing the creation and dates of removal (presumably of the Subject Posts), which are two distinct concepts. (Id. at 61).
3. Ruling
The Court finds that Interrogatory No. 10, which seeks total revenues for Defendants for the years 2019-2021, is overbroad and accordingly DENIES the motion to compel a further response to this request. As to Interrogatory No. 21, which seeks information about revenues derived from clicking third party links, Defendants' argument that they cannot answer because they do not have the click through data is not a basis for refusing to answer an interrogatory. “If a party is unable to supply the requested information, the party may not simply refuse to answer, but must state under oath that he is unable to provide the information and set forth the efforts he used to obtain the information.” Hansel, 169 F.R.D. at 305 (internal quotation marks and citation omitted). For this reason, the Court orders a further response to Interrogatory No. 21. In Interrogatories Nos. 22 and 23, Plaintiff seeks total revenues that Defendants received in connection with the publication or distribution of the Subject Posts and Subject Photographs. The Court finds these requests are relevant and proportional to the needs of the case, and orders further responses to Interrogatory Nos. 22 and 23 from Defendants.
*13 Finally, Defendants argue that Interrogatories Nos. 22, 23 and 25 exceed the permitted number because Interrogatories Nos. 1 and 3 contain subparts and therefore, each of those two earlier Interrogatories should be counted as more than one interrogatory. Interrogatory No. 1 requests that Plaintiff identify all witnesses with knowledge about the creation of the Subject Posts, including witnesses with knowledge about the “obtainment, distribution, and approval” of the posts. Fairly construed, this inquiry merely requests a list of witnesses with knowledge about how the Subject Posts came into being, from the receipt of the materials needed to create the Posts through their approval and posting, and is properly counted as a single interrogatory. Interrogatory No. 3, in contrast, asks about how the Subject Posts were created and when they were removed, which appear to be two different topics that are properly counted as two interrogatories. Because Interrogatory No. 3 is actually two interrogatories, Plaintiff has effectively propounded twenty-six interrogatories and exceeded the allotted number of interrogatories by one. For this reason, Interrogatory No. 25 exceeds the limit, and Defendant need not answer that Interrogatory. However, because Interrogatory Nos. 22 and 23 do not exceed the allowable number of interrogatories even if Interrogatory No. 3 counts as two, for the reasons stated above, Defendants are ordered to respond to Interrogatory Nos. 22 and 23.
VI. REQUESTS FOR SANCTIONS
Plaintiff and Defendants respectively seek reimbursement of attorney's fees incurred in connection with this Motion as sanctions under Federal Rule of Civil Procedure 37. (Jt. Stip. at 26-27). Rule 37 provides in relevant part:
If the [discovery motion] is granted -- or if the disclosure or requested discovery is provided after the motion was filed -- the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.
Fed. R. Civ. P. 37(a)(5)(A). Conversely, if the discovery motion is denied, the court must require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses, including attorney's fees, incurred in opposing the motion. Fed. R. Civ. P. 37(a)(5)(B). Finally, if the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(B).
However, if the non-prevailing party can demonstrate “substantial justification” for its motion, nondisclosure, or opposition, Rule 37 provides that the court must deny sanctions. Fed. R. Civ. P. 37(a)(5)(A)(ii). “There is no bright line standard for ‘substantial justification,’ and courts must use discretion when deciding whether opposition to a motion to compel is substantially justified.” Brown v. State of Iowa, 152 F.R.D. 168, 173 (S.D. Iowa 1993). “[C]ourts have generally focused on ‘the quality of the justification and the genuineness of the dispute [and whether] an impartial observer would agree that a party had good reason to withhold discovery[ ]’ when determining whether opposition is substantially justified.” Id. (quoting Alvarez v. Wallace, 107 F.R.D. 658, 662 (W.D. Tex. 1985)).
Here, the Court has granted Plaintiff's Motion to Compel only in part and has found that several of Plaintiff's challenges to Defendant's discovery responses are not well taken. At the same time, the Court also found that Defendants' responses were not always in full compliance with the Federal Rules of Civil Procedure. Accordingly, because both parties bear some responsibility for the instant dispute, the Court finds that sanctions are not warranted under Rule 37, and the parties' respective requests for sanctions under Rule 37 are DENIED.
VII. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART. Defendants shall serve supplemental discovery responses as required by this Order no later than April 4, 2022. The parties' respective requests for sanctions are DENIED.
Footnotes
The “Subject Photographs” are attached as Exhibit A to the Complaint.
Exhibit B to Matz's Declaration appears to have inadvertently included two identical copies of Plaintiff's second set of production requests. (Compare Matz Decl. Exh. B at 9-13 with id. at 14-18) (consecutive pagination).
The Scheduling Order provides that the discovery cut-off is the date by which all discovery “shall be completed.” (Dkt. No. 76 at 5). The Order further provides that “All interrogatories, requests for production of documents, and requests for admissions shall be served sufficiently in advance of the discovery cut-off date to permit the discovering party enough time to challenge (via motion practice) responses deemed to be deficient” and that “Any motion challenging the adequacy of responses to discovery must be heard sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date if the motion is granted.” (Id.).
Neither party submitted copies of Defendants' discovery responses as exhibits in connection with the Motion. Accordingly, the Court must assume that the responses are accurately transcribed in the Joint Stipulation and that the variations in the objections noted here are as Defendants served them.
Plaintiff does not attach copies of the screenshots or provide any details about their contents.