Counsel

Relevant to this motion, Planner 5D claims that “Apple obtained and presumably used” a particular dataset that defendant Princeton had created from what Planner 5D describes as “unauthorized copies of [Planner 5D's] three-dimensional works.” Dkt. No. 184 at 1:11-16. That dataset is called the “SUNCG dataset.” Planner 5D claims—and Apple has confirmed—that Apple asked Princeton to license that dataset (among others) for commercial projects, and Princeton declined. See Dkt. No. 162 at 4:11-13 (Joint Letter Brief re: Discovery Dispute, filed April 22, 2022). After that denial, Apple found and licensed what Planner 5D describes as “similar objects and scenes” from a different company, Evermotion, and used them to create a different but (according to Planner 5D) comparable dataset to the one that Princeton allegedly created based on Planner 5D's works, called “Hypersim.” Relief Mot. 1:20-25. Planner 5D wishes to use this Evermotion license as a “benchmark license in the industry” to calculate hypothetical-license damages in this case, as “[it] will show what Apple paid for an alternative dataset and on what terms.” Dkt. No. 162 at 2.

Planner 5D first sought discovery into the relevance of this license in October 2021, when it subpoenaed Apple for records concerning its interest in SUNCG. Dkt. No. 162 at 1:1. Apple began collecting responsive records, and agreed to produce responsive emails once they were collected and reviewed, although some disputes remained. See id. at 3:14-17. In April 2022, Planner 5D moved to compel Apple's production of “(1) the Evermotion license; (2) records of other Hypersim development expenses; and (3) records of other alternative datasets.” Relief Mot. 2; Dkt. No. 162 at 1:3-6. Judge Kim denied that motion, quashed the subpoena, and directed Planner 5D to narrow its subpoena. Dkt. No. 163.

Accordingly, on May 20, 2022, Planner 5D served non-party Apple another subpoena seeking the following: (1) “All non-privileged “internal and external e-mails collected from current and former APPLE employees related to P5D and the SUNCG dataset” that APPLE was or is reviewing in response to P5D's October 2021 subpoena”; (2) “APPLE's license with a third-party to use Evermotion data (‘the Evermotion License’)”; and (3) the “first five purchase orders submitted under the Evermotion License that APPLE identifies after reasonable investigation.” Dkt. No. 184-1. After Apple objected to producing responsive documents by a particular date, Planner 5D asked Judge Kim on June 28, 2022, to order Apple to produce “all responsive documents” within three business days of the entry of her order. Dkt. No. 184. But at that point, I had bifurcated discovery, and the motion to compel was stayed until the end of Phase 1 of discovery. Dkt. No. 187. After the stay was lifted, Judge Kim held a hearing, see Dkt. No. 330, and then denied the motion to compel and quashed the subpoena, holding that Requests 2 and 3, for the Evermotion License and purchase orders, were “not relevant to this litigation,” and that Request 1 was still too broad and sought information that Judge Kim considered of “minimal value.” See MJ Order 2-3.