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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tom Bean, et al., Plaintiffs, 10 11 v. 12 Pearson Education, Inc., 13 14 Defendant. ) ) ) ) ) ) ) ) ) ) ) CV 11-8030-PCT-PGR ORDER 15 Before the Court is Plaintiffs’ Motion to Compel Production of Documents Requested 16 in First and Third Sets of Document Expenses and for Award of Expenses. (Doc. 69.) 17 Defendant filed a response opposing the motion and Plaintiffs filed a reply. (Docs. 83, 88.) 18 For the reasons set forth below, the motion will be denied. 19 BACKGROUND 20 Plaintiffs filed a complaint on February 25, 2011, alleging copyright infringement and 21 fraud. (Doc. 1.) Plaintiffs filed their First Amended Complaint on June 14, 2011, and 22 Defendant filed an answer on July 1. (Docs. 56, 66.) 23 The First Amended Complaint omitted an allegation contained in the original 24 complaint. Citing the omitted language, Defendant contended that the First Amended 25 Complaint dramatically reduced the number of Plaintiffs’ copyright infringement claims, 26 from 834 to six (relating to five of 178 publications). (See Doc. 67 at 4; Doc. 80 at 12; Doc. 27 81 at 3.) In the parties’ Joint Case Management Report, Defendant based its proposed 28 discovery deadlines on the limited number of claims included in the First Amended 1 Complaint. (Doc. 67 at 12.) On August 16, 2011, the Court granted Plaintiffs’ motion to file 2 a Second Amended Complaint. (Doc. 77.) 3 DISCUSSION 4 Federal Rule of Civil Procedure 37(a)(3)(B)(iv) provides that a party may file a 5 motion to compel if “a party fails to respond that inspection will be permitted—or fails to 6 permit inspection—as requested under Rule 34.” 7 Plaintiffs move to compel Defendant to produce documents responsive to their first 8 and third sets of document requests, dated March 17 and May 6, 2011, which propound a 9 total of 14 document requests. (Doc. 69, Att. 2 at 2, 24.) These requests seek discovery 10 relating to the use of the photographs Plaintiffs licensed to Defendant for inclusion in 11 educational publications from 1986 to 2010. (See Doc. 88 at 10.) 12 Plaintiffs contend that Defendant has failed to produce the books in which Plaintiffs’ 13 photographs were used; the licensing files for Plaintiffs’ photographs; the date and quantity 14 printed for each individual printing session of the books in question; and Defendant’s display 15 of Plaintiffs’ photographs on any internet website. (Doc. 69 at 5.) 16 Defendant responds that it already has produced, or will produce in several weeks or 17 months, the documents relevant to the claims in the First Amended Complaint. (See, e.g., 18 Doc. 83 at 3.) Defendant also states that it will produce additional materials relevant to the 19 allegations in the Second Amended Complaint. (Id.) Plaintiffs reply that this “mere statement 20 of intention to produce documents without actual production, several months after the 21 requests were propounded, is an insufficient response under Rule 34.” (Doc. 88 at 9.) 22 While sharing Plaintiffs’ concern with the pace of disclosure, the Court will deny the 23 motion to compel. As set forth in the Court’s scheduling order, discovery is to be completed 24 by January 6, 2012. (Doc. 78.) The Second Amended Complaint was filed August 16, 2011. 25 (Doc. 85.) Defendant has indicated that it is in the process of providing the disclosure sought 26 by Plaintiffs. Under these circumstances the Court concludes that a motion to compel is 27 premature. 28 -2- 1 However, the Court’s denial of the motion should not be construed as a ruling that 2 Defendant has fully complied with Rule 34. Inadequate compliance with discovery rules may 3 warrant Court intervention and an award of attorneys’ fees. 4 The parties are again instructed to obey both the letter and spirit of the Federal Rules 5 of Civil Procedure and to work together to manage discovery in the most efficient manner 6 practical. 7 Accordingly, 8 IT IS ORDERED that Plaintiffs’ Motion to Compel Production (Doc. 69) is denied. 9 IT IS FURTHER ORDERED that a Status Conference has been set for Monday, 10 October 31, 2011, at 11:15 a.m., before the Hon. Paul G. Rosenblatt, in Courtroom 601, 11 Phoenix, Arizona. 12 DATED this 12th day of September, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?