Smith v. Summit Entertainment, LLC

Filing 14

ORDER by Magistrate Judge Jacqueline Scott Corley denying 1 Motion to Compel (ahm, COURT STAFF) (Filed on 6/27/2013)

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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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MATTHEW SMITH, PKA MATT
HEART,
Plaintiff,

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Case No. 13-mc-80104 JSW (JSC)
ORDER DENYING MOTION TO
COMPEL (Dkt. No. 1)

v.

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SUMMIT ENTERTAINMENT, LLC,

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Defendant.

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AND RELATED COUNTERCLAIMS

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___________________________________/

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Plaintiff Matthew Smith sued Defendant Summit Entertainment, LLC in Ohio federal

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court arising out of Summit’s submission of a “takedown notice” for a video Smith had posted

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on YouTube. Summit now moves to compel non-party Google, Inc. to produce discovery

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regarding its preparation of an affidavit in the Ohio litigation. After carefully considering the

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parties’ submissions, and having had the benefit of oral argument on June 27, 2013, Summit’s

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motion is denied. The discovery Summit seeks is not reasonably likely to lead to the

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discovery of information relevant to the Ohio lawsuit.

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BACKGROUND
In 2010 Smith uploaded a song entitled “Eternal Knight” to YouTube and other online

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services. Summit subsequently submitted Digital Millennium Copyright Act (“DMCA”)

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takedown notices to those services, including YouTube, alleging that the video infringed

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Summit’s intellectual property rights. In response, YouTube removed the video. A few

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months later, Smith sued Summit in Ohio federal court for a violation of section 512(f) of the

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DMCA. Smith alleges that his video does not violate any of Summit’s rights and that Summit

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knowingly misrepresented that the video infringed.

topics, including Summit’s takedown request to YouTube. After various meet and confer

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Northern District of California

Summit subsequently served a subpoena on Google seeking documents on various

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United States District Court

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efforts, Google ultimately stated that it would not produce any documents in response to the

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subpoena. Several months later, at a deposition of a Summit witness, Smith produced an

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affidavit from Google with a caption from the Ohio litigation regarding YouTube’s takedown

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policies and procedures (“the Affidavit”). Attached to the Affidavit was a copy of the

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takedown notice submitted by Summit to YouTube.

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“In order to find out why Google had apparently had a change-of-heart, and to

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determine what was said between Google and Smith, Summit served a second deposition and

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documents subpoena on Google.” (Dkt. No. 1 at 6.) Among other topics, Summit sought

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testimony regarding the creation of the Affidavit and all communications between Google and

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Smith regarding the Affidavit. In response to the subpoena, Google produced 133 pages of

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documents, including documents evidencing communications between Smith’s counsel and

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Google. Prior to the production of the Affidavit and the documents, Summit had been

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unaware of any communications between Google and Smith.

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Google also produced its employee Debra Tucker for a 30(b)(6) deposition. Ms.

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Tucker signed the Affidavit attesting to Google’s policies and procedures. At her deposition,

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however, Ms. Tucker was unable to testify as to any communications between Smith and

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Google or the creation of the Affidavit. Summit now seeks to compel Google to produce a

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witness competent to testify as to (1) the creation of the Affidavit, and (2) communications

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between Smith and Google regarding the Affidavit and the production of documents.
DISCUSSION

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to

relevant to the subject matter involved in the action. Relevant information need not be

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admissible at the trial if the discovery appears reasonably calculated to lead to the discovery

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of admissible evidence.” Fed. R. Civ. P. 26(b). Summit has failed to persuade the Court that

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the discovery it seeks is relevant to any claim or defense in the Ohio litigation. Its only

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argument appears to be that it is entitled to explore why Google assisted Smith and not

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Northern District of California

any party’s claim or defense. . . . For good cause, the court may order discovery of any matter

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United States District Court

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Summit. But Summit has failed to explain why such “onesidedness” matters. In response to

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a question from the Court at oral argument, Summit conceded that it does not have a good

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faith belief that anything in the Affidavit is inaccurate; thus, there is no reason to impeach

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Google’s testimony. Moreover, Summit does not contend that at the 30(b)(6) deposition

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Google refused to answer questions regarding its policies and procedures, information which

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is arguably relevant to the underlying litigation.

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It may be true that Summit will have to present the evidence regarding Google’s

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policies and procedures that it deems important via deposition transcript rather than Affidavit,

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but why does that matter? There is no rule of which this Court is aware that requires a court

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to give more weight to evidence in an affidavit than in a deposition. Summit also complains

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that Google will appear as a neutral party when in fact it took sides. But Summit has the

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evidence it needs to argue that Google refused to assist Summit while at the same time it

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cooperated with Smith. In any event, in the end Summit has still failed to explain how such

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“bias” has any relevance to the material issues in the lawsuit. Accordingly, Summit’s motion

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to compel is DENIED.

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CONCLUSION

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As the discovery Summit seeks is not relevant to any claim or defense in the Ohio

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lawsuit, Summit’s motion to compel is DENIED. Any objections to this Order must be filed

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with the district court judge within 14 days of service of this Order. If no such objections are

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filed, the Clerk is directed to close the case.

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IT IS SO ORDERED.
Dated: June 27, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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Northern District of California

United States District Court

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