Bean v. John Wiley & Sons Incorporated

Filing 104

ORDER granting Plaintiff's motion to compel keys explaining spreadsheet codes and fees 84 ; Defendant shall provide plaintiff with a key defining all terms contained in Exhibit A to Plaintiff's reply 94 within 5 days; denying Plaintiff's motion to compel production of documents 85 ; each party to bear its own fees and costs. Signed by Judge Frederick J Martone on 1/17/12.(REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tom Bean, Plaintiff, 10 11 vs. 12 John Wiley & Sons Incorporated, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) CV 11-08028-PCT-FJM ORDER 15 16 Plaintiff is a professional photographer. Defendant publishes educational textbooks. 17 Plaintiff alleges that defendant infringed his copyrights by unlawfully reproducing his 18 photographs in its textbooks. 19 The court has before it plaintiff's motion to compel keys explaining spreadsheet codes 20 (doc. 84), defendant's response (doc. 88), and plaintiff's reply (doc. 94). We also have 21 plaintiff's motion to compel production of documents (doc. 85), defendant's response (doc. 22 90), and plaintiff's reply (doc. 95). 23 I 24 In the course of discovery, plaintiff requested defendant to produce printing, sales, and 25 distribution data. Defendant maintains this information in an electronic database called 26 CORE. Defendant produced the requested information, first in the form of screenshots and 27 then (upon plaintiff's request) in excel spreadsheet format. Several of the column headings 28 and spreadsheet cells include abbreviations. For example, one spreadsheet includes the 1 following: "INV ADJ Units (life to date)," "VG Enc PAG," "LM4E," "BRV." and "IRCD." 2 Reply to Mot. to Compel Keys, ex. A. Plaintiff asked defendant to provide a key to each 3 spreadsheet that would define each abbreviation. Defendant refused, stating that plaintiff 4 already knows the meaning of the terms from deposition testimony, and stating that it is not 5 required to create documents that do not currently exist. Plaintiff moves for an order 6 compelling defendant to produce keys defining the spreadsheet codes. 7 A party may request electronically stored information ("ESI") that is "stored in any 8 medium from which information can be obtained either directly or, if necessary, after 9 translation by the responding party into a reasonably usable form." Fed. R. Civ. P. 10 34(a)(1)(A). The rule explicitly places the burden of translating the data on the responding 11 party (in this case, the defendant). Although spreadsheets are generally a useable form, 12 defendant's use of cryptic abbreviations without definition renders these portions of the 13 spreadsheets meaningless, just as if the data had been produced in code or in a non-readable 14 format. 15 Defendant complains that because plaintiff has learned the meaning of the 16 abbreviations through deposition testimony and informal communications with counsel, 17 providing this information is duplicative and improperly burdensome. We disagree. It is 18 defendant's burden to translate ESI into a useful format. Plaintiff has already provided 19 defendant with a list of abbreviations for which it seeks a definition. Reply to Mot. to 20 Compel Keys, ex. A. Requiring defendant to supply definitions already in its possession is 21 not overly burdensome compared to requiring plaintiff to sift through pages of documents. 22 Plaintiff's motion to compel keys explaining the spreadsheets is granted. 23 II 24 Next, plaintiff moves for production of documents responsive to two requests. First, 25 plaintiff seeks documents that identify similar claims of unauthorized use of visual art 26 brought against defendant (Document Request 46). Second, plaintiff seeks transcripts of 27 deposition testimony of employees and agents of defendant from substantially similar actions 28 -2- 1 (Document Request 47).1 Plaintiff states that the existence of similar claims by other 2 photographers is relevant to the issues of defendant's willfulness and notice. Plaintiff also 3 expects that deposition transcripts likely contain relevant information regarding defendant's 4 business operations and whether defendant has a policy of knowing copyright infringement. 5 Defendant objects, arguing that the two actions filed against it not involving plaintiff's 6 counsel concern different photographs, licensing transactions, and publications. Moreover, 7 defendant argues that plaintiff may seek his own discovery in this case to uncover 8 information about defendant's business operations and policies. In his reply, plaintiff quotes 9 from depositions already in his possession to bolster his argument that the other deposition 10 testimony he seeks will be directly relevant to the issues of notice and willfulness. Plaintiff 11 also argues for the first time that he seeks production of the transcripts for impeachment 12 purposes. We do not consider new arguments raised in a reply. See Eberle v. City of 13 Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). 14 Plaintiff does not dispute defendant's observation that the remaining two infringement 15 cases against it concern different photographs, licensing transactions, and publications. We 16 are not persuaded that the additional information sought - from cases involving different 17 publications and different licensing processes - is likely to lead to discovery of admissible 18 evidence and result in a benefit to plaintiff greater than the burden on defendant of 19 production. See Fed. R. Civ. P. 26(b)(1); id. 26(b)(2)(C). Plaintiff's motion to compel 20 production of documents responsive to Document Request 46 and 47 is denied. III 21 22 We have granted one motion to compel and denied the other. Both motions and 23 responses were substantially justified. See id. 37(a)(5). Rather than ordering defendant to 24 pay plaintiff fees for one motion and plaintiff to pay defendant fees for the other, we think 25 it best to call it even. 26 27 28 1 Plaintiff is not requesting deposition transcripts for cases in which its own counsel represented the plaintiff, as counsel already possesses copies. -3- 1 IT IS ORDERED GRANTING plaintiff's motion to compel keys explaining 2 spreadsheet codes and fees (doc. 84). Defendant shall provide plaintiff with a key defining 3 all terms contained in Exhibit A to plaintiff's reply (doc. 94) within five days of the date of 4 this order. 5 6 IT IS ORDERED DENYING plaintiff's motion to compel production of documents (doc. 85). 7 Each party to bear its own fees and costs. 8 DATED this 17th day of January, 2012. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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