Andersen et al v. Stability AI Ltd. et al

Filing 104

REPORT of Rule 26(f) Planning Meeting Plaintiffs. (Saveri, Joseph) (Filed on 8/22/2023)

Case 3:23-cv-00201-WHO Document 104 Filed 08/22/23 Page 1 of 7

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Joseph R. Saveri (State Bar No. 130064)
Cadio Zirpoli (State Bar No. 179108)
Christopher K.L. Young (State Bar No. 318371)
Louis A. Kessler (State Bar No. 243703)
Elissa A. Buchanan (State Bar No. 249996)
Travis Manfredi (State Bar No. 281779)
JOSEPH SAVERI LAW FIRM, LLP
601 California Street, Suite 1000
San Francisco, California 94108
Telephone: [phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Matthew Butterick (State Bar No. 250953)
1920 Hillhurst Avenue, #406
Los Angeles, CA 90027
Telephone: [phone]
Facsimile:
[phone]
Email:
[e-mail]
Counsel for Individual and Representative
Plaintiffs Sarah Andersen, Kelly McKernan,
Karla Ortiz, and the Proposed Class
[Additional Counsel Listed on Signature Page]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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SARAH ANDERSEN, et al.,

Case No. 3:23-cv-00201-WHO

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Individual and Representative Plaintiffs,

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v.

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STABILITY AI LTD., et al.,

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Defendants.

PLAINTIFFS’ RULE 26(f ) REPORT

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Case No. 3:23-cv-00201-WHO
PLAINTIFFS’ RULE 26(f) REPORT

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I.

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INTRODUCTION
Pursuant to Federal Rule of Civil Procedure 26(f), a conference was held on Tuesday, August 8,

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2023, between counsel for Plaintiffs Sarah Andersen, Kelly McKernan, and Karla Ortiz (“Plaintiffs”),

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counsel for Defendants Stability AI Ltd. and Stability AI, Inc. (“Stability”), counsel for Defendant

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Midjourney, Inc. (“Midjourney”), and counsel for Defendant DeviantArt, Inc. (“DeviantArt”)

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(collectively, “Defendants”). Plaintiffs and Defendants, by and through counsel, met and conferred

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concerning the topics set forth in Rule 26(f), and the United States District Court for the Northern

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District of California’s Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored

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Information and Guidelines for the Discovery of Electronically Stored Information. Pursuant to Rule

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26(f)(2) and Civil Local Rule 16-9(a), Plaintiffs1 hereby submit this Rule 26(f) Report in advance of the

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Case Management Conference now scheduled for September 19, 2023. ECF No. 95.

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II.

CASE MATTERS RELEVANT TO DISCOVERY

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A.

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Plaintiffs anticipate discovery motions, a motion for class certification, and summary judgment

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Discovery Motions

motions.

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B.

Amendments to Pleadings

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The Court has indicated it will likely grant leave to amend with respect to claims found deficient. If

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claims are dismissed with leave to amend, Plaintiffs intend to file an amended complaint to address

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pleading deficiencies identified by the Court.

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C.

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Plaintiffs have reviewed the Guidelines Relating to the Discovery of Electronically Stored

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Information and have met and conferred pursuant to Rule 26(f) regarding reasonable and proportionate

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steps taken to preserve evidence relevant to the issues reasonably evident in the case. Plaintiffs are

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prepared to meet and confer to ensure other relevant evidence is preserved as necessary.

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Evidence Preservation

Plaintiffs have confirmed that they are preserving relevant evidence including ESI.

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1 Counsel for Defendants declined to participate in this Rule 26(f ) Report. On August 8, 2023, the Court
entered an order continuing Rule 26 deadlines for Deviant Art and Midjourney, but ordered that Plaintiffs
and Stability AI to proceed with their Rules 26 obligations. ECF No. 95.
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PLAINTIFFS’ RULE 26(f) REPORT

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Plaintiffs have confirmed that they are not aware of any source of electronically stored information

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that is reasonably expected to be subject to discovery that has been destroyed, not maintained or is not

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reasonably accessible.

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D.

Disclosures

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Plaintiffs served their Initial Disclosures as required by Rule 26(a)(1)(A) on August 22, 2023.

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Plaintiffs will serve and supplement Initial Disclosures as necessary, as required by Rule 26(e).

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III.

DISCOVERY

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A.

Scope of Discovery

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Plaintiffs believe that discovery is governed by the Federal Rules of Civil Procedure. Plaintiffs have

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not identified specific concerns regarding the scope of discovery. Plaintiffs are prepared to continue to

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meet and confer on this topic once requests for production of documents have been propounded.

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Subjects of Discovery from Defendants: The following is a non-exhaustive list of subjects of

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discovery from Defendants. Plaintiffs reserve all rights to expand upon these subject areas as the case

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progresses:

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

The interactions between Class members (including Plaintiffs) and Defendants.

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

Defendants’ conduct that caused their respective image generation products to ingest and

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distribute copies and/or derivative works of the Works (as defined in the Complaint)—all without

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CMI, including:

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o Defendants’ actions in the creation, marketing, alteration, and operation of Stable

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Diffusion, DreamStudio, the Midjourney product; and DreamUp;

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o Inter-Defendant and intra-Defendant communications regarding image generation

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products; and

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o Complete or sufficient representative samples of Stable Diffusion, DreamStudio, the

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Midjourney product; and DreamUp input and output, including pairs of prompts and

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output.

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

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DeviantArt’s knowledge and action that led to its alteration of its own Terms of Service and Privacy
Policy;

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Defendants’ organizational structures related to image generation products.

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PLAINTIFFS’ RULE 26(f) REPORT

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

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Contracts or other agreements between or among Defendants, Defendants and Plaintiffs, and
Defendants and third parties that relate to image generation products.

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Defendants’ corporate form and formation, capital structure, and ownership structure.

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

Defendants’ financial records, including financial statements and other records showing

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Defendants’ income, profit and loss, and other financial results derived from the sale, marketing,

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and distribution of commercial products using or incorporating the Works.

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

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Information regarding all materials used to train Stable Diffusion, DreamStudio, the Midjourney
product; and DreamUp, including the materials themselves.

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Documents showing the injuries caused to Plaintiffs.

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Documents showing the economic and other damages caused by or resulting from Defendants’

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conduct.

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Facts related to affirmative defenses raised by Defendants.

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Defendants’ policies regarding usage of copyrighted material.

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

Defendants’ interactions with governmental or regulatory entities regarding their image generation

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products, including document submissions, requests for information or documents, testimony

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(Congressional or otherwise), and correspondence.

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

Defendants’ participation in other lawsuits or private administrative proceedings regarding image

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generation products.

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B.

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Plaintiffs have met and conferred regarding the discovery limits set forth in the Federal Rules of

Discovery Limits

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Civil Procedure and have indicated a likelihood that they will require expansion of the limits with respect

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to the number of depositions and interrogatories.

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C.

Production of Electronically Stored Information

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Plaintiffs have met and conferred pursuant to Rule 26(f) and have reviewed the Guidelines Relating

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to the Discovery of Electronically Stored Information (“ESI Guidelines”). Plaintiffs are prepared to

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continue to meet and confer on this topic to come to agreement on a stipulated order regarding production

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of ESI. Plaintiffs have discussed the potential need for ESI Liaisons and are prepared to meet and confer

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further on this topic once discovery requests have been served. Plaintiffs have discussed how responsive
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PLAINTIFFS’ RULE 26(f) REPORT

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material will be identified and metadata formatting for ESI and will continue to do so as discovery

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progresses.

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D.

Protective Order

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Plaintiffs have identified the need for a protective order to protect confidential and highly

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confidential information once the parties begin producing documents. Plaintiffs will share a proposed

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Stipulated Protective Order with Defendants.

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E.

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Plaintiffs will share a stipulated Privileged Materials Order under Rule 502(d) for Defendants’

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Privilege

consideration.

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F.

Deposition Logistics

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Plaintiffs believe that in-person depositions are appropriate for all witnesses, either in the Northern

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District or elsewhere in the United States. Plaintiffs are unaware of depositions to be taken outside the

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United States at this time. Plaintiffs agree to meet and confer should any disputes arise as to location of

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depositions and/or use of remote depositions.

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G.

Discovery Issues and Potential Disputes

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Plaintiffs believe that certain discovery may commence between Plaintiffs and Stability. Plaintiffs

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have not identified any specific discovery dispute—except that Plaintiffs do not agree any Defendant may

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refuse to participate in the discovery process entirely. Plaintiffs are prepared to meet and confer on these

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and any other discovery disputes that may arise.

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Plaintiffs have agreed to electronic service in all instances where service is necessary and will
exchange service lists with Defendants should they also agree.

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H.

Narrowing of Issues

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No issues have yet been narrowed by agreement or by motion. Plaintiffs are prepared to meet and

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confer about narrowing potential issues should the circumstances of the case change.

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IV.

SCHEDULING

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A.

Expedited Trial Procedures

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Plaintiffs believe this case is inappropriate for the Expedited Trial Procedure of General Order 64.

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PLAINTIFFS’ RULE 26(f) REPORT

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B.

Case Schedule

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The parties met and conferred regarding the case schedule but have not come to an agreement.

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Plaintiffs are prepared to continue to meet and confer pending the Court’s upcoming order on the pending

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motions to dismiss and timing for amendments of Plaintiffs’ complaint. Should the Court wish to enter a

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case schedule, Plaintiffs are prepared to meet and confer regarding a proposed schedule.

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PLAINTIFFS’ RULE 26(f) REPORT

Case 3:23-cv-00201-WHO Document 104 Filed 08/22/23 Page 7 of 7

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Dated: August 22, 2023

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By:

/s/ Joseph R. Saveri
Joseph R. Saveri

Joseph R. Saveri (State Bar No. 130064)
Cadio Zirpoli (State Bar No. 179108)
Christopher K.L. Young (State Bar No. 318371)
Louis A. Kessler (State Bar No. 243703)
Elissa A. Buchanan (State Bar No. 249996)
Travis Manfredi (State Bar No. 281779)
JOSEPH SAVERI LAW FIRM, LLP
601 California Street, Suite 1000
San Francisco, California 94108
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Matthew Butterick (State Bar No. 250953)
1920 Hillhurst Avenue, #406
Los Angeles, CA 90027
Telephone: [phone]
Facsimile:
[phone]
Email:
[e-mail]

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Brian D. Clark (pro hac vice)
Laura M. Matson (pro hac vice)
Eura Chang (pro hac vice)
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: [phone]
Facsimile:
[phone]
Email: [e-mail]
[e-mail]
[e-mail]

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Counsel for Individual and Representative
Plaintiffs and the Proposed Class

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Case No. 3:23-cv-00201-WHO

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PLAINTIFFS’ RULE 26(f) REPORT