*1 On December 6, 2022, Plaintiff Jane Doe in the above-captioned putative class action filed the instant Motion to Compel Production of Documents by Defendants MindGeek USA Incorporated, MindGeek S.a.r.l., MG Freesites Ltd, MG Freesites II Ltd (d/b/a Pornhub), MG Content RT Ltd, and 9219-1568 Quebec Inc. (d/b/a Mindgeek) (collectively, “Defendants”). (“MTC,” Dkt. No. 56). The parties submitted a Joint Stipulation in compliance with Local Rule 37-2, (“Jt. Stip.,” Dkt. No. 56-1), accompanied by the declaration of Amy B. Gregory in support of the motion, (“Gregory Decl.,” Dkt. No. 56-2), and the declaration of Michelle Hart Yeary in opposition to the motion (“Yeary Decl.,” Dkt. No. 56-7), including attached exhibits. Neither party elected to file an optional supplemental memorandum as permitted by Local Rule 37-2.3.

The Court held an in-person hearing on the MTC on January 10, 2023. For the reasons stated below and on the record at the hearing, Plaintiff's Motion to Compel is DENIED.

Plaintiff brings this action on her own behalf and on behalf of others similarly situated under the Trafficking Victims Protection Reauthorization Act of 2003, 18 U.S.C. §§ 1591, 1595, and other federal and state laws. (First Amended Complaint (“FAC”), Dkt. No. 28, ¶¶ 175-216). Plaintiff alleges that when she was sixteen, a man recorded her performing sexual acts without her consent, (id. ¶ 158), and the video was later posted on Pornhub.com, which is operated by Defendants. (Id. ¶ 159). According to Plaintiff, she made numerous requests to Defendants to remove the video, which was permanently taken down only when Plaintiff created a Pornhub account to comment on the illegal nature of the video. (Id. ¶ 162). Although Plaintiff does not allege that Defendants themselves posted the video, she contends that they knowingly participated in and financially benefitted from the “sex trafficking venture” carried out on Defendants' websites. (Jt. Stip. at 6).

Plaintiff filed the operative First Amended Complaint on April 20, 2022. (“FAC,” Dkt. No. 28). On April 26, 2022, Plaintiff served 56 requests for production of documents on Defendants. (Gregory Decl. ¶ 4 & Exh. B). On May 16, 2022, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (“MTD,” Dkt. No. 29). While the MTD asserts several grounds for dismissal, Defendants primarily contend that all of Plaintiff's claims are barred by Section 230 of the Communications Decency Act, which affords a provider of an interactive computer service broad immunity from liability for content posted to its websites by third parties. (Dkt. No. 29-1 at 1, 5-13) (citing 47 U.S.C. § 230(c)(1)). The parties filed a Joint Rule 26(f) Report on May 20, 2022. (Dkt. No. 31). The Court entered a Protective Order pursuant to the parties' stipulation on June 3, 2022. (Dkt. No. 37).

Defendants served objections and written responses to Plaintiff's production requests on June 6, 2022. (Gregory Decl. ¶ 5 & Exh. C). Over the course of the next several months, the parties met and conferred several times to address Defendants' responses and objections to the production requests and to negotiate proposed custodians and search terms for Defendants' production. (Id. ¶¶ 6-12). While negotiations were ongoing, on July 22, 2022, Defendants filed a motion for a partial stay of discovery pending resolution of their motion to dismiss. (“Stay Motion,” Dkt. No. 45). Defendants argue that a stay is warranted because their motion to dismiss is dispositive of the entire case and can be decided without any discovery, and because they would be severely prejudiced if they were required to shoulder the burden and expense of reviewing and producing hundreds of thousands of documents and taking and defending depositions that may become entirely unnecessary. (Dkt. No. 45-1 at 4-9). Both the motion to dismiss and the motion for a stay are still pending before the District Judge.

*2 On October 5, 2022, Plaintiff's counsel asked Defendant to proceed with a review of 508,765 documents with hits from a set of negotiated search terms. (Gregory Decl. ¶ 13). In early November, counsel for Defendants confirmed that Defendants were reviewing documents, but also stated that Defendants did not intend to make a production while their motion to dismiss was pending. (Id. ¶¶ 15-16). Defendants represent that if their motion to dismiss is denied, they could begin producing documents in “roughly two weeks.” (Yeary Decl. ¶ 9). The parties requested and participated in a pre-motion informal telephonic discovery conference on November 22, 2022 with the undersigned Magistrate Judge to address their dispute about Defendants' obligation to begin production. (Id. ¶ 17). As the parties were unable to resolve their differences, this motion to compel followed on December 6, 2022.

The only issue in dispute in the MTC is whether Defendants should be required to begin producing documents immediately -- pursuant to the parties' agreement on search terms and custodians in response to requests for which Defendants have already agreed to produce relevant information -- before the District Judge rules on Defendants' motion to dismiss or motion for a partial discovery stay. (Jt. Stip. at 4). Specifically, Plaintiff seeks immediate production of documents responsive to RFP Nos. 1-11, 13-26, 28-31, 37-46, 49-51, and 53-56, although it is the timing of the production, not the substance of the requests, that is at issue. (Id. at 1).

Plaintiff contends that Defendants should be compelled to produce documents as there is no provision in the Federal Rules of Civil Procedure for an automatic stay on discovery during the pendency of a motion to dismiss. (Id. at 8). Furthermore, Defendants have actively participated in refining the scope of their production, having spent months “negotiating custodians and search terms, and [having] agreed on a set of terms that yielded approximately 508,000 documents for Defendants to conduct a responsiveness review.” (Id. at 6). Plaintiff asserts that Defendants cannot dispute the relevancy of the documents Plaintiff seeks, as “Defendants did not raise any relevance arguments in their responses and objections to Jane Doe's Requests No. 1-11, 13-26, 28-31, 37-46, 49-51, 53-56, which are governed by the parties agreed search terms and custodians.” (Id. at 7). Nor, according to Plaintiff, can Defendants claim the production would be unduly burdensome, as they admittedly are already in the process of conducting a responsiveness review of the 508,000 documents. (Id. at 7-8). Furthermore, because Pornhub.com is the eighth most visited website in the United States, its advertising revenues easily provide Defendants with the financial resources necessary to complete the production. (Id. at 8).

Plaintiff further argues that stays on discovery pending motions to dismiss are disfavored, and because the District Judge has not affirmatively granted Defendants' motion for a stay, Defendants should not be permitted to refuse to produce documents as though a stay were already in place. (Id. at 8-9). Plaintiff also notes that the protective order governing discovery in this action eliminates any concerns about producing confidential information. (Id. at 9). Finally, Plaintiff contends that Defendants' failure to specify a date in their written responses to the production requests by which the production will be completed should be treated as a failure to answer. (Id. at 9-10).

Defendants counter that their motion to dismiss is likely to prevail as it is based on the broad grant of immunity afforded website providers under Section 230. (Id. at 10, 13-14). Defendants dispute Plaintiff's contention that her claim should be allowed to proceed based on the “narrow exception” to Section 230 if the internet service provider violates 18 U.S.C. § 1591 as to the plaintiff's content, because Plaintiff does not allege that Defendants violated Section 1591.[1] (Id. at 14). Even if Plaintiff could overcome Section 230 immunity, Defendants maintain that her TVPRA claim fails to allege the required elements of such a claim. (Id.).

*3 Additionally, Defendants argue that the discovery Plaintiff seeks -- which would require review of over half a million documents -- is overly broad, particularly as Plaintiff is unlikely to obtain class certification. (Id. at 11). Furthermore, the parties have engaged in significant discovery -- including exchanging initial disclosures, negotiating an electronic discovery protocol (Dkt. No. 36) and a protective order specific to Plaintiff's identity (Dkt. No. 44), and serving written responses to discovery requests. (Jt. Stip. at 11). Contrary to Plaintiff's assertion, Defendants state that they have objected to Plaintiff's production requests as overbroad because they seek irrelevant information that is not proportional to the needs of the case. (Id.). However, even though Defendants have not agreed to respond to the requests as written in their entirety, Defendants have agreed to produce some documents over their objections if their motion to dismiss is not granted. As such, Defendants maintain that Plaintiff will not be prejudiced by a delay until the District Judge rules on the motion to dismiss. (Id.). Additionally, the actual production of documents would require Defendants to incur “enormous expenses,” including potential motion practice over discovery disputes, which would be completely unnecessary if their motion to dismiss is granted. (Id. at 12).

Defendants also contend that their motion for a stay on discovery is likely to be successful. The standard for staying discovery pending the resolution of a potentially dispositive motion requires a determination of whether “(1) the pending motion [is] potentially dispositive of the entire case, or at least dispositive on the issue at which discovery is directed; and (2) ... the pending, potentially dispositive motion can be decided absent additional discovery.” (Id.) (quoting Unicolors, Inc. v. Burlington Store, Inc., 2015 WL 13919162, at *5 (C.D. Cal. Dec. 10, 2015) (Gee, J)). Defendants argue that a stay is “particularly appropriate” where harm or prejudice will result from the discovery, as here. (Jt. Stip. at 12). Defendants also emphasize that Plaintiff's motion to compel is functionally an effort to make an “end run around Judge Gee by seeking the same relief in parallel from this Court,” as the issue of whether Plaintiff is entitled to full, immediate discovery has been squarely presented to the District Judge in Defendants' motion for a stay, which is still pending. (Id. at 13). (Id. at 13). Defendants also contend that courts “routinely” grant stays of discovery when there is a “clear possibility” of dismissal, as here. (Id. at 15) (quoting GTE Wireless, Inc. v. Qualcomm, Inc., 192 F.R.D. 284, 287 (S.D. Cal. 2000)).

Defendants additionally dispute Plaintiff's contention that the protective order is sufficient to address any confidentiality concerns, as Plaintiff should not be allowed to conduct a fishing expedition for confidential information if she does not have a viable claim, particularly when, as here, compliance with the requests would be “costly.” (Jt. Stip. at 16-17). As for Plaintiff's complaint that Defendants did not specify a production date in their written responses to the production requests, Defendants note that Plaintiff did not specify a production date in her responses to Defendants' requests, either. (Id. at 17). Finally, Defendants assert that the harm to them if they are required to “engage in a full blown document production without a ruling on their Motion to Dismiss” greatly outweighs any “prejudice to Plaintiff in waiting a short time for a ruling from Judge Gee that could come literally any day now.” (Id. at 18).

“Though the Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery simply because a potentially-dispositive motion is pending, where a dispositive motion raises issues of jurisdiction, venue, or immunity, courts within the Ninth Circuit often rule that staying discovery is appropriate pending resolution of these threshold issues.” Norvell v. Blue Cross & Blue Shield 'Ass'n, 2018 WL 4335612, at *4 (D. Idaho Sept. 10, 2018) (citing cases). However, the parties do not dispute that whether a stay on discovery should issue is a matter of discretion for the District Judge to decide, not this Court. See, e.g., United States v. INSYS Therapeutics, Inc., 2021 WL 4307404, at *1 (C.D. Cal. Apr. 14, 2021) (“The decision to stay discovery pending the resolution of a potentially dispositive motion is within the court's discretion.”) (citing Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981), and Top Rank, Inc. v. Haymon, 2015 WL 9952887, at *1 (C.D. Cal. Sept. 17, 2015)).

*4 Plaintiff's motion to compel production of documents presents largely the same question that has already been put before the District Judge: whether a stay of discovery is warranted in this case while Defendants' motion to dismiss is pending. The Court declines to be put in the untenable position of usurping an issue squarely presented to the District Judge. Accordingly, the Court limits its ruling to the very narrow question of whether the equities favor requiring discovery to proceed at this time pending a potentially imminent decision from the District Judge on Defendants' motion to stay discovery or motion to dismiss, with the understanding that this Court's ruling is not a decision on the merits of whether a stay should issue.

The Court finds that the prejudice to Defendants in being forced to produce documents and otherwise participate in discovery at this stage of the proceedings outweighs the prejudice to Plaintiff in being forced to wait for documents for a potentially limited time pending a definitive ruling from the District Judge on how this case should (or should not) proceed. As such, Plaintiff's motion to compel is DENIED.

Defendants have persuasively argued that the prejudice they would suffer in proceeding with discovery at this juncture would be significant, even if they are currently conducting a review of an agreed-upon set of documents should they at some point be required to produce them. Defendants have, to a large extent, cooperated in discovery by serving written responses to Plaintiff's production requests, identifying custodians, and negotiating search terms, even before an answer to the FAC has been filed and a scheduling order has issued. That level of cooperation is commendable and strongly suggests that Defendants are not categorically refusing to move this case forward while waiting for the District Judge to rule on their potentially dispositive motion to dismiss. The Court will not use Defendants' cooperation against them to minimize their burden in proceeding from document review to actual production, which in this case is considerable. The sheer quantity of documents Defendants must process clearly renders discovery in this case a costly endeavor in terms of both time and money. Defendants are reviewing over half a million documents, and completing that review would likely involve making further responsiveness and privilege determinations, preparing a privilege log, and working with (and paying) their vendor to put the documents in a format suitable for production to Plaintiff. Furthermore, should discovery proceed at this time, in addition to producing documents, Defendants could be called upon to take and defend depositions, which could add considerably to Defendants' burden. Also, Defendants noted at the hearing and in their papers that they have objected to certain requests as irrelevant and disproportionate to the needs of this case. (See Jt. Stip. at 11). Because Defendants have not agreed to produce all documents as requested without objection, it is conceivable that post-production disputes might arise that would require further conferences of counsel to address the parties' differences, and, potentially, motion practice, adding considerably to the burden and cost of litigation. It is worth emphasizing that some or all of these expenditures could soon be unnecessary, depending on how the District Judge rules on Defendants' motions.

At the same time, Plaintiff has not shown that her case will be significantly harmed if she is required to wait for an undefined, but presumably limited, period for a ruling from the District Judge before proceeding with further discovery. While Plaintiff argued at the hearing that any delay in the litigation and resolution of this action is necessarily prejudicial because it would prolong the ongoing alleged sexual exploitation of minors, because Plaintiff admits that the offending images of her have been taken down, (FAC ¶ 162), the strength of Plaintiff's ongoing harm argument depends in large part on whether a class is certified. That is uncertain, as Defendants noted at the hearing that another judge in this District denied joinder of Plaintiff's claims to another case against Defendants on the ground that the issues presented were highly individualized, such that trying the cases separately would not entail unnecessary duplication of effort. (See Jt. Stip. at 11 (citing Order Declining Case Transfer, Dkt. No. 15 at 2). The prejudice to Plaintiff is further minimized by Defendants' representation that if the District Judge denies one or both of their motions, they can be prepared to begin production within two weeks of the denial of the motion. (Jt. Stip. at 17).

*5 Finally, the Court is also mindful that in another case, Judge Gee has explained that where parties in cases before her are unable to agree on how to proceed with discovery before a scheduling order issues, the parties are to wait for the issuance of the scheduling order before their disputes will ripen for adjudication and discovery may proceed. As stated by the District Judge,

Limbu v. UST Global, Inc., 2017 WL 8186674, at *7 n.4 (C.D. Cal. Apr. 20, 2017). Plaintiff has not shown that Judge Gee's practices have changed since her order in Limbu issued. Accordingly, in recognition of the District Judge's sole authority to issue a Scheduling Order and rule on related matters, including discovery stays, the Court declines to order early discovery absent the parties' mutual agreement or an affirmative decision of the District Judge.

For the reasons stated above and on the record at the hearing, Plaintiff's Motion to Compel is DENIED.