Bean et al v. Pearson Education Incorporated

Filing 91

ORDER that Plaintiffs Motion to Compel Production (Doc. 69) is denied.FURTHER ORDERED that a Status Conference has been set for Monday,October 31, 2011, at 11:15 a.m., before the Hon. Paul G. Rosenblatt, in Courtroom 601,Phoenix, Arizona. Signed by Judge Paul G Rosenblatt on 9/12/2011.(TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tom Bean, et al.,
Plaintiffs,

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v.

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Pearson Education, Inc.,

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Defendant.

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CV 11-8030-PCT-PGR
ORDER

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Before the Court is Plaintiffs’ Motion to Compel Production of Documents Requested

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in First and Third Sets of Document Expenses and for Award of Expenses. (Doc. 69.)

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Defendant filed a response opposing the motion and Plaintiffs filed a reply. (Docs. 83, 88.)

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For the reasons set forth below, the motion will be denied.

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BACKGROUND

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Plaintiffs filed a complaint on February 25, 2011, alleging copyright infringement and

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fraud. (Doc. 1.) Plaintiffs filed their First Amended Complaint on June 14, 2011, and

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Defendant filed an answer on July 1. (Docs. 56, 66.)

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The First Amended Complaint omitted an allegation contained in the original

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complaint. Citing the omitted language, Defendant contended that the First Amended

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Complaint dramatically reduced the number of Plaintiffs’ copyright infringement claims,

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from 834 to six (relating to five of 178 publications). (See Doc. 67 at 4; Doc. 80 at 12; Doc.

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81 at 3.) In the parties’ Joint Case Management Report, Defendant based its proposed

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discovery deadlines on the limited number of claims included in the First Amended

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Complaint. (Doc. 67 at 12.) On August 16, 2011, the Court granted Plaintiffs’ motion to file

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a Second Amended Complaint. (Doc. 77.)

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DISCUSSION

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Federal Rule of Civil Procedure 37(a)(3)(B)(iv) provides that a party may file a

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motion to compel if “a party fails to respond that inspection will be permitted—or fails to

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permit inspection—as requested under Rule 34.”

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Plaintiffs move to compel Defendant to produce documents responsive to their first

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and third sets of document requests, dated March 17 and May 6, 2011, which propound a

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total of 14 document requests. (Doc. 69, Att. 2 at 2, 24.) These requests seek discovery

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relating to the use of the photographs Plaintiffs licensed to Defendant for inclusion in

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educational publications from 1986 to 2010. (See Doc. 88 at 10.)

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Plaintiffs contend that Defendant has failed to produce the books in which Plaintiffs’

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photographs were used; the licensing files for Plaintiffs’ photographs; the date and quantity

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printed for each individual printing session of the books in question; and Defendant’s display

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of Plaintiffs’ photographs on any internet website. (Doc. 69 at 5.)

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Defendant responds that it already has produced, or will produce in several weeks or

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months, the documents relevant to the claims in the First Amended Complaint. (See, e.g.,

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Doc. 83 at 3.) Defendant also states that it will produce additional materials relevant to the

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allegations in the Second Amended Complaint. (Id.) Plaintiffs reply that this “mere statement

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of intention to produce documents without actual production, several months after the

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requests were propounded, is an insufficient response under Rule 34.” (Doc. 88 at 9.)

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While sharing Plaintiffs’ concern with the pace of disclosure, the Court will deny the

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motion to compel. As set forth in the Court’s scheduling order, discovery is to be completed

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by January 6, 2012. (Doc. 78.) The Second Amended Complaint was filed August 16, 2011.

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(Doc. 85.) Defendant has indicated that it is in the process of providing the disclosure sought

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by Plaintiffs. Under these circumstances the Court concludes that a motion to compel is

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premature.

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However, the Court’s denial of the motion should not be construed as a ruling that

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Defendant has fully complied with Rule 34. Inadequate compliance with discovery rules may

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warrant Court intervention and an award of attorneys’ fees.

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The parties are again instructed to obey both the letter and spirit of the Federal Rules

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of Civil Procedure and to work together to manage discovery in the most efficient manner

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practical.

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Accordingly,

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IT IS ORDERED that Plaintiffs’ Motion to Compel Production (Doc. 69) is denied.

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IT IS FURTHER ORDERED that a Status Conference has been set for Monday,

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October 31, 2011, at 11:15 a.m., before the Hon. Paul G. Rosenblatt, in Courtroom 601,

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Phoenix, Arizona.

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DATED this 12th day of September, 2011.

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