Lopez Tax Service, Inc. et al v. The Income Tax School, Inc.

Filing 61

ORDER RE: JOINT DISCOVERY LETTER. Signed by Magistrate Judge Jacqueline Scott Corley on 7/15/2013. (ahm, COURT STAFF) (Filed on 7/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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LOPEZ TAX SERVICE, INC., et al.,
Plaintiffs,

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Case No.: C-12-02654 JSW (JSC)
ORDER RE: JOINT DISCOVERY
LETTER

v.

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INCOME TAX SCHOOL, INC.,
Defendant.

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The Court is in receipt of the parties’ joint discovery letter concerning the deposition of Sandra

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Barrett. (Dkt. No. 60.) After carefully considering the parties’ arguments, the Court concludes that a

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deposition of Barrett is warranted.

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Plaintiffs assert that Barrett, a former employee of the predecessor company to

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Defendant/Counter-Claimant Income Tax School, Inc., was the original author of four of the eight

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allegedly infringing works at issue in this action. The works in question are all training materials for

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income tax professionals, which Plaintiffs contend include non-copyrightable IRS materials.

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Plaintiffs assert that Barrett’s deposition is necessary because, “[s]ince the basis for any copyright of

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those works is as a compilation or a derivative, only this witness can identify what original material or

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what original selection and arrangement of pre-existing government publications was created and

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therefore what is the basis of ITS[’] copyrights.” (Dkt. No. 60 at 1.) Defendant does not argue that

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Barrett’s deposition is irrelevant or unimportant to the case; rather, Defendant contends that Plaintiffs’

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request to depose Barrett should be denied because the request occurred on June 13, 2013, well after

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the June 3 discovery cut-off, and Plaintiffs knew or should have already known of Barrett’s

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importance to the case months earlier.

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Although Plaintiffs likely should have realized during the parties’ depositions in December

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that Barrett played a significant role in the development of some of the infringing works, Defendant

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has failed to show how it would be prejudiced if Barrett were to be deposed now. Summary judgment

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briefs are not scheduled to be filed until August 30, 2013, with a planned hearing for October 25,

Northern District of California

2013. If her deposition is taken within the next few weeks, the parties’ schedule will be unaffected.

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United States District Court

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Further, it appears that Defendant’s own tardiness in responding to Plaintiffs’ interrogatories may

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have contributed to Plaintiffs’ delayed deposition request. (See Dkt. No. 60 at 5 (“ITS answered the

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Lopez Parties’ interrogatories on June 3, nearly two weeks after the May 22 due date and the day fact

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discovery closed.”).)

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Given her apparent significance to the case, deposing Barrett will contribute to a fair
determination of this action. Plaintiffs’ request is accordingly GRANTED.

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IT IS SO ORDERED.

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Dated: July 15, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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