*1 THIS CAUSE is before the Court on Plaintiffs, UMG Recordings, Inc., Capitol Records, LLC, Universal Music Corp., Universal Music - Z Tunes LLC, Universal Musica, Inc., PolyGram Publishing, Inc., Songs of Universal, Inc., and Universal Music - MGB NA LLC's, (hereinafter “Plaintiffs”) Motion to Compel. (ECF No. 29) On July 26, 2020, the Honorable William P. Dimitrouleas referred all pretrial discovery matters to United States Magistrate Judge Lurana S. Snow for appropriate resolution pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida. (ECF No. 17) The Motion is now ripe for review.

Plaintiffs are record labels and music publishers engaged in the business of “monetizing a catalog of copyrights” for music and sound recordings. (ECF No. 1 at 1) In the course of 2020, Defendants, Vital Pharmaceuticals, Inc., d/b/a Bang Energy and Jack Owoc (hereinafter “Defendants”), used the social media platform TikTok, to advertise their products. (ECF. No 1 at 3) Defendants are a brand of energy drinks and sports nutrition supplements (Bang Energy) and Bang Energy's CEO (Jack Owoc). Defendants began posting “more than 100 videos” on TikTok on the company's account and on the personal account of Jack Owoc (under the usernames of @bangenergy and @bangenergy.ceo, respectively). (ECF No. 1 at 2-3) The videos posted by Defendants to TikTok feature content creators who are participants of Bang Energy's social media ambassador program as well as other “well-known” TikTok and YouTube content creators (hereinafter “Influencers”). (ECF No. 1 at 9; 11 at 6)

Plaintiffs allege that they confronted Defendants in January 2021, regarding Defendants’ use of Plaintiffs’ music in Defendants’ TikTok videos. (ECF No. 1 at 13) Defendants allegedly did this without first seeking a license for the use. (ECF No. 1 at 13) Defendants responded that it was their “understanding that TikTok provides use of these songs, and others, with a license to all of its members.” (ECF No. 1 at 3-It was thus Defendants position that no license was required for the use of Plaintiffs’ music. (ECF No. 1 at 3-4) Plaintiffs argue that Defendants are a “sophisticated entity” that should have been aware of TikTok's Intellectual Property Policy and Terms of Service and Community Guidelines which “do not allow posting, sharing, or sending any content that violates or infringes someone else's copyrights, trademarks or other intellectual property rights.”[1] (ECF No. 11 at 12) On April 28, 2021, Plaintiffs filed a Complaint and Demand for Jury Trial and the instant dispute ensued. (ECF No. 1)

In the Motion to Compel, Plaintiffs ask this Court to compel Defendants to produce all responsive documents and complete interrogatory responses, overrule Defendants’ objections to producing agreements with Michael Le, Q Park, and its twenty other top influencers, and provide a deposition date for Defendant's corporate representative. On January 24, 2022, Defendants filed their Response to the Motion where they objected to Plaintiffs’ claims that they are evading or refusing to comply with their discovery obligations and stated that any disputes regarding the depositions of Jack Owoc, Meg Owoc, Gideon Eckhouse, and Sury Rodriguez, as well as Defendants’ corporate representatives were resolved. (ECF No. 30 at 5) However, one day after filing their Response, Defendants filed a supplement to inform the Court of a scheduling conflict with Jack Owoc's deposition which was originally set for February 22, 2022. (ECF No. 31 at 1). Defendants suggested that Mr. Owoc's deposition be rescheduled for March 4, 2022, a week after the discovery cutoff in this case. (ECF No. 31 at 1) Plaintiffs’ were not agreeable to this suggestion, thus, Defendants state that they are “working to identify a date before February 25, 2022, in which Mr. Owoc can set aside a full day for his deposition in this case.” (ECF No. 31 at 1)

A. General Background on Discovery:

*2 The Rules of Civil Procedure shall be “construed, administered, and employed by the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. According to Rule 26(b)(1) of the Federal Rules of Civil Procedure:

Discovery must be relevant to the claims and defenses in the case. Fed. R. Civ. P. (26)(b)(1). Discovery must also be proportional “to the needs of the case.” Id. The determination of what is relevant for discovery purposes depends on the parties’ claims and defenses.

An interrogatory must be answered fully, and any objections must be stated with specificity. Fed. R. Civ. P. 33(b)(4); S.D. Fla. L.R. 26.1(e)(2)(A). It is the burden of the discovery respondent to establish a lack of relevancy or another basis for resisting production. See, e.g., Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 697 (S.D. Fla. 2011) (noting that the court could grant motion to compel “solely based on [discovery respondent's] procedurally inadequate objections”). After a properly stated objection is presented, the proponent of a motion to compel seeking to overrule the objection must prove relevance of the requested discovery. See, e.g., Diamond State Ins. Co. v. His House, Inc., No. 10- 20039-CIV, 2011 WL 146837 (S.D. Fla. Jan. 18, 2011).

B. Motion to Compel:

At the core of the dispute is Defendants’ defense that their TikTok videos used music which was provided in TikTok's music library and that thus Defendants innocently believed that their use of Plaintiffs’ music in the background of their videos was permissible. (ECF No. 30 at 1) In Plaintiffs’ requests for production and interrogatories, Plaintiffs ask for documents which could support these defenses including: documents that prove Defendants’ 17 affirmative defenses; documents that identify license fees that Bang paid to third parties to use copyrighted works; amounts Bang paid to Bang's social media team and influencers; Bang's profits; and cease and desist letters from third parties (including Plaintiffs, Warner, and Sony) (ECF No. 29-5; RFPs 13-16, 19-20, 25-26, 38-53). It response to these requests, Defendants state that they are continuing to look for responsive documents or information and that they will supplement their responses and production “as discovery proceeds.” (ECF Nos. 29-5; RFPs 2-3, 14-16, 38-53; 29-4 at 3, 7) While Defendants eventually supplemented their responses to clearly state that the cease-and-desist letters have been produced (ECF 29-5 at 10), the Court finds that Defendants’ amended responses fail to provide Plaintiffs with other requested documents and information which is relevant to Plaintiffs’ claims and Defendants’ affirmative defenses.

*3 When responding to the discovery requests, Defendants had the burden of establishing a proper basis for resisting production. See, e.g., Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 697 (S.D. Fla. 2011). While it was reasonable at some time in the discovery process that Defendants were “working to identify responsive documents,” Defendants have been provided with enough time to either provide the documents and information sought in Plaintiffs’ discovery requests or to state clearly that the information sought does not exist/is not in Defendants’ custody or control. For example, RFPs 38-53 seek documents related to Defendants’ seventeen affirmative defenses. (ECF No. 29-5 at 15-21) In response to every single one of these sixteen requests, Defendants provide an identical response: “Defendants’ affirmative defenses will be supported by documents and evidence obtained through the parties’ discovery and Defendants will continue to work to identify any available responsive documents and will supplement this Request as discovery proceeds.” (ECF No. 29-5 at 15-21)

The Court notes that the discovery cutoff in this case is set for February 25, 2022. Despite this fact it does not appear to the Court that any documents have been provided by Defendants in response to RFPs 38-53. Further, RFPs 2-3, 14-16, as well as Interrogatories 1-2, and 13 all contain language which states that Defendants are working to identify additional responsive information with which Defendants will supplement their responses. As the discovery cutoff is imminent in this case, the Court finds that Defendants must either complete their productions with all response documents and information or clearly state that no further responsive materials exists. Accordingly, Defendants shall supplement their discovery responses to RFPs 2-3, 14-16, 38-53 and Interrogatories 1-2, and 13 to either fully respond to Plaintiffs’ discovery requests with the information Defendants previously stated they were working to identify, or Defendants shall clearly state that any additional information does not exist/is not in Defendants’ custody or control. This shall be done by the February 25, 2022, discovery cutoff.

Next, Plaintiffs argue that Defendants’ objections to producing its agreements with its top influencers should be overruled. (ECF No. 29 at 4) To support Plaintiffs’ claims for contributory/vicarious liability, Plaintiffs request all contracts or agreements between Bang Energy and Bang Energy's influencers in RFP 1. (ECF No. 29-5 at 5) Defendants object to the request on the basis that it is “unduly burdensome and not proportional to the needs of the case...” as Defendants state they have contracted with thousands of influencers. (ECF No. 29-5 a 5) However, Defendants state that they were working with Plaintiffs to “consider an alternative response that would not include all contracts or agreements...” between Bang Energy and its influencers. (ECF No. 29-5 at 5) Defendants also argue that the production of these agreements poses confidentiality concerns. (ECF No. 30 at 4)

The Court notes that Plaintiffs’ have offered to narrow their requests from all of Defendants’ contracts or agreements with their influencers to only Defendants’ agreements with Michael Le, Q Park, and Bang's 20 other biggest influencers measured by either followers or the amounts paid by Defendants. (ECF No. 29 at 4) The Court finds RFP 1 when narrowed to this extent to be relevant and proportional to the needs of the case. Pursuant to this Court's General Order on Discovery Objections and Procedures, if an objection is based upon an unduly broad scope, discovery should be provided as to matters within the scope that is not objected to. (ECF No. 18 at 2) The Court notes that to date it appears that no documents have been produced in response to RFP 1. Thus, Defendants shall produce all contracts or agreements between Bang Energy and Michael Le, Q Park, as well as Bang Energy's twenty other biggest influencers, measured by either followers or the amounts paid by Defendants, no later than February 25, 2022. To the extent that Defendants express concerns regarding any personal and private information of the influencers being disclosed, such concerns should be adequately addressed by the Stipulated Confidentiality Agreement and Protective Order. (ECF No. 28)

*4 Lastly, Defendants state in Response to the Motion that any alleged dispute regarding their depositions has been resolved. (ECF No. 30 at 4-5) However, shortly after filing their Response, Defendants filed a Supplemental Response stating that the deposition of Jack Owoc had to rescheduled owing to a scheduling conflict. (ECF No. 31 at 1) Defendants suggested to Plaintiffs that Mr. Owoc's deposition be rescheduled for March 4, 2022, a week after the discovery cutoff in this case. (ECF No. 31 at 1) Plaintiffs’ were not agreeable to this suggestion, thus, Defendants state that they are “working to identify a date before February 25, 2022, in which Mr. Owoc can set aside a full day for his deposition in this case.” (ECF No. 31 at 1) Defendants do not dispute the fact that Plaintiffs are entitled to depose Mr. Owoc, rather Defendants simply state that Mr. Owoc is a “busy CEO whose schedule is set months in advance.” As Plaintiffs are entitled to depose Mr. Owoc, Defendants shall work to ensure that an agreeable date for Mr. Owoc's deposition is set prior to the February 25, 2022 discovery cutoff. In the event that this is not possible and the parties require a brief continuance of the discovery period to conduct Mr. Owoc's deposition, such a request must be properly presented to the District Court.

After careful review of the Motion to Compel, the responses, the reply thereto, the court file, and applicable law, it is hereby

ORDERED AND ADJUDGED as follows:

DONE AND ORDERED at Fort Lauderdale, Florida this 18th day of February 2022.